$95 parking fine turns into $4,000

A person has been ordered to pay more than $4,000 in legal costs and fees after unsuccessfully challenging a $95 parking fine on the basis that the Council that had issued the fine was constitutionally invalid. This case highlights that persons need to think carefully before embarking on challenges to local government fines and penalties and need to ensure that they have valid grounds to sustain a defence.
Implications

• While the Australian Constitution contains no express reference to local government, it is well established that State governments have the power to validly establish local governments.
• Local governments, as a creation of State governments, have the powers and jurisdiction conferred on them by State legislation.
• It is important for local governments to act within the scope of their powers and comply with relevant legislative requirements; however there is no question that local governments are constitutionally valid and lawfully established.
• Persons who wish to challenge the lawfulness of fines or penalties imposed by local governments need to identify proper grounds upon which to base any challenge and, if unsuccessful, face the prospect of local governments being awarded legal costs in addition to penalty and investigative costs.

Decision

In a decision from South Australia (McDougall v City of Playford [2017] SASC 169), a person had been ordered to pay costs and fees in excess of $4,000 after unsuccessfully taking a challenge against a parking fine all the way to the Supreme Court of South Australia.

The person was originally fined $95 by Playford Council for parking on the verge in front of their house. The appellant, who was self-represented, appealed the fine to the Magistrates Court where he was unsuccessful and then further appealed the Magistrate’s decision to the Supreme Court.

In the original hearing in the Magistrates Court, a statement of agreed facts together with other evidence adduced by the Council established all the elements of the offence. However, the appellant’s defence at trial was that the Council had no lawful authority to fine any person because on federal constitutional grounds Councils are not recognised — i.e. Councils have no legal status.

The Magistrate was unpersuaded by the appellant’s submissions and recorded a conviction, imposed a fine of $150 and compulsory victim of crime levy of $160 and ordered the appellant to pay the Council’s legal costs in the amount of $3,680.

In his appeal to the Supreme Court, the appellant raised 14 grounds of appeal. In its judgment, the Supreme Court noted that the “grounds of appeal on their face make little or no sense and the appellant has been unable to assist further in this respect in either his written or oral submissions”.

The grounds raised by the appellant fell into basically two categories being that:

• the Council was constitutionally invalid and had no legal status; and
• the Magistrate had no legal authority to hear the case under the Australian Constitution.
  The Court variously described that the appellant’s case was ‘plainly untenable’, ‘incoherent and nonsensical’ and ‘entirely without substance’.

The Court accordingly rejected the appeal against the conviction but did note that there was a relevant issue in relation to sentencing that the Magistrate did not appear to consider. Nevertheless, the Court was satisfied that the sentence imposed by the Magistrate was appropriate.

Finally, the Council applied for further costs against the appellant arising from the appeal to the Supreme Court. The relevant court rule was that costs were fixed at $500, and while there was discretion to award further costs and the Court was satisfied that the Council had reasonably incurred additional costs, the Court declined to award additional costs having regard to the financial circumstances of the appellant.

Nonetheless, the appellant was ultimately in a significantly worse position financially having unsuccessfully challenged the parking fine.

Authored by:
Stafford Hopewell, Partner, Brisbane
Elton Morais, Senior Associate, Brisbane