Should a ‘free—spirited person’ with ‘unchallengeable rights’ have to pay a parking fine?

LG Leader August 2020

The answer is unequivocally, yes.

We have recently (and perhaps unsurprisingly in light of the current climate) noticed an increase in the number of challenges to parking fines by way of individuals electing to be prosecuted.

These challenges are based on varied grounds but more recently, we have seen the following grounds raised on more than one occasion:

  • challenges to the constitutional validity of Local Government;
  • a lack of contract between the council and recipient of the expiation notice; and
  • trespass on the basis that the issuing officer has trespassed when attaching the expiation notice to the vehicle.

The Supreme Court in the recent matter of Rossiter v Adelaide City Council [2020] SASC 61 considered challenges on the grounds outlined above. In that case, His Honour Justice Livesey has reiterated that:

  • the challenge to the constitutionality of the Local Government, which has been tried before, is without merit;
  • the assumption that a prosecution for an expiation notice relies upon the existence of a contract between the council and an individual, is incorrect;
  • the affixation of an expiation notice to the vehicle is explicitly permitted by the Expiation of Offences Act 1996 and cannot amount to a trespass; and
  • the three-page document that is making rounds and titled “Notice of Understanding and Intent and Claim of Right” has no bearing at all on the prosecution, and is incapable of generating any defence.

His Honour also confirmed that these types of pseudo-legal challenges have not only been rejected by the Court, they are also ‘legal nonsense’ and a waste of public and judicial resources.

Where a recipient of an expiation notice challenges the notice on the grounds outlined above, we recommend that the recipient be referred to this judgment and offered the opportunity to reconsider their position.

If you would like further information, please contact Brian Ngugi on bngugi@kelledyjones.com.au or 08 8113 7106.