Alan Field Candy v Auckland City Council

IN THE COURT OF APPEAL OF NEW ZEALAND

CA371/02

ALAN FIELD CANDY

AUCKLAND CITY COUNCIL

Hearing:	17 February 2003
Coram:	Gault P Keith J McGrath J
Appearances:	Applicant in person M T Wharfe for Respondent
Judgment:	25 February 2003

JUDGMENT OF THE COURT DELIVERED BY MCGRATH J

This is an application for special leave to appeal on a question of law against a judgment of the High Court which dismissed an appeal brought by the applicant against his conviction in the District Court of a parking offence.
On 28 March 2002 the applicant, Mr Candy, was convicted by Justices of the Peace in the District Court of an offence against Auckland City Bylaw 1998, Part 25, Clauses 25.6.1 through to 25.6.15. The conviction followed a hearing in respect of an infringement notice issued for a parking offence under s21 of the Summary Proceedings Act 1957. The infringement notice alleged that the applicant had parked in a pay and display area in the City not displaying a valid parking receipt in the manner required. Part 25 of the Bylaw addresses matters of traffic management. Clause 25.6 is headed “Parking Meters” and comprises clauses 25.6.1 to 25.6.15 which provide for regulation of parking by parking meters and in parking places where parking receipt dispensers operate. The provisions of the Bylaw of direct relevance to the present application for special leave to appeal are as follows:
25.6.8Notwithstanding the provisions of Clause 25.6.1 the Council may install and operate parking receipt dispensers in any area which has been declared a parking place.
A person intending to park a vehicle in such a parking place shall deposit the prescribed fee in the parking receipt dispenser located within that parking place.
Display of receipt
25.6.9The receipt issued by the dispenser shall be displayed in a conspicuous position inside the vehicle, but so as to be readable by an authorised officer standing outside the vehicle.
Evidence was given in the District Court that a Toyota vehicle was observed by a traffic warden on 11 October 2001 parked in a pay and display parking area between 9.59am and 10.18am without displaying a receipt. The warden issued an infringement notice with a fee of $40 payable. It was not in dispute in the District Court that Mr Candy had parked the vehicle on the occasion in question. He admitted in his evidence that he had not put any money into the pay and display machine nor otherwise purchased a ticket entitling him to park. He was convicted by the Justices, fined $40, and ordered to pay court costs of $30.
The applicant appealed to the High Court against that decision. The appeal was heard and an oral judgment delivered by Priestley J on 23 August 2002. In the High Court the applicant argued, as he had in the District Court, that the infringement notice had unlawfully stipulated an infringement fee of $40 for the parking offence concerned rather than a fee of $12 which on the applicant’s submission was that provided for by Schedule 2 to the Transport Act 1982. Under s42A(8)A of that Act the infringement fee payable for a stationary vehicle offence is that specified in Schedule 2.
Schedule 2 relevantly provides as follows:
Schedule 2
Infringement offences and fees
[Part 1
Parking offences
Offence  Infringement fee
1. Any parking offence involving
parking on a road in breach of a local
authority bylaw, in excess of a period
fixed by a meter or otherwise, where
the excess time is-
Not more than 30 minutes                 $12 or such lesser amount as is
  fixed by the local authority
More than 30 minutes but not           $15 or such lesser amount as is
more than 1 hour  fixed by the local authority
More than 1 hour but not more        $21 or such lesser amount as is
than 2 hours  fixed by the local authority
More than 2 hours but not more        $30 or such lesser amount as is
than 4 hours  fixed by the local authority
More than 4 hours but not more        $42 or such lesser amount as is
than 6 hours  fixed by the local authority
More than 6 hours  $57 or such lesser amount as is
  fixed by the local authority
2.(a) Parked on or within 6m in  $60
       of an intersection
(b) Parked on or near a pedestrian  $60
      crossing
(c) Parked on broken yellow lines  $60
(d) Double parking  $60
(e) Inconsiderate parking  $60
(f) Parked on a clearway  $60
(g) Parked on a bus only lane  $60
3. All other parking offences  $40
The applicant’s argument in the High Court was that his offence fell within paragraph 1 of Part I of the Second Schedule as a “parking offence involving parking on a road in breach of a local authority bylaw, in excess of a period fixed by a meter or otherwise….” The excess time in his case, he said, was not more than 30 minutes. If that were the case the fee of $12 would have been that provided for by paragraph 1 of the Schedule rather than the $40 fee provided for in the category “All other parking offences” in paragraph 3.
In his judgment of 23 August 2002 Priestley J rejected that argument. He held that a pay or display machine was not a parking meter but accepted that the words “or otherwise” in paragraph 1 covered parking receipt dispensers. However he also took the view that it was impossible to compute any period, and thus to fix a period, where there had been no payment at all activating the parking receipt dispenser. In those circumstances the offending did not involve parking “in excess of a period fixed” in terms of paragraph 1 at all. The offence committed, where there was a failure to make any payment activating a receipt dispenser, accordingly was of a kind that fell outside of paragraph 1 and was accordingly covered by the residual paragraph 3.
Priestley J was accordingly satisfied that the only argument of substance put to him in the appeal lacked merit and that the applicant had been properly convicted and fined on the hearing into the infringement notice. He dismissed the appeal. The Judge ordered the applicant to pay the respondent’s costs of the appeal in the modest sum of $100.
The applicant then applied, under s144 of the Summary Proceedings Act, to the High Court for leave to appeal to the Court of Appeal against the High Court’s judgment. That application was heard on 8 October 2002 by Priestley J.
At this hearing, for the first time, the applicant invoked the definition of “parking” in s2 of the Transport Act as follows:
“parking” means-
(a) In relation to any portion of a road where parking is for the time being governed by the location of parking meters placed pursuant to a bylaw of a local authority, the stopping or standing of a vehicle on that portion of the road for any period exceeding 5 minutes:
(b) In relation to any other portion of a road, the stopping or standing of a vehicle on that portion of the road:
The applicant argued in support of his application for leave that para (a) of this definition when applied to paragraph 1 introduced the periodic element into his parking offence, sufficient for paragraph 1 to cover that offence. Although the point had not been advanced at the substantive hearing of the appeal Priestley J addressed this new argument. He held that:
Even if the appellant’s vehicle was “parked” within the meaning of s2(a) (there was some argument as to whether a parking receipt dispenser was a “parking meter” for the purpose of s2(a)) that subsection only introduces an element of time for the purpose of determining whether or not a vehicle stopped in a metered portion of road is “parked”. Once a vehicle is “parked” (stopped longer than 5 minutes) it must be further shown that it was “parked” in excess of a fixed period (some period other than the initial 5 minute threshold required to establish “parking” in the first place) before clause 1 of Part 1 of Schedule 2 will apply.
The applicant also sought to raise validity of the Bylaw in question in support of his application for leave to appeal. Priestley J observed that at no stage previously had the applicant attacked the power of the Council to promulgate the Bylaw. By reference to the decision of Sinclair J in Keall v Takapuna City Council (HCAK M239/85 10 May 1985) he also rejected the argument on its merits. Ultimately he declined the application for leave to appeal because, although the case affected a large number of motorists and concerned the exercise of delegated penal authority, in his view none of the points that the applicant wished to advance at the second appeal were seriously arguable. He ordered the applicant to pay costs of $500 to the respondent.
Mr Candy then applied to this Court under s144, for special leave to appeal to the Court against the substantive High Court judgment. He filed written submissions and sought at the hearing before us to have two affidavits admitted, one of which concerned a separate District Court proceeding relating to a similar matter and its outcome. It has no relevance to the present application. The other affidavit referred to the results of certain Official Information Act requests he had made seeking information which he submitted showed the matter before the Court was one of general or public importance. The applicant was in particular concerned to establish the amount of revenue that the Council would not have received had his contentions as to the manner in which the Schedule applied been held to be correct in the High Court. We have read the material concerned but for reasons that will become apparent have not found it of assistance in determining the appeal.
Under s115 of the Summary Proceedings Act a defendant convicted by the District Court has a general right of appeal against both conviction and sentence to the High Court. Thereafter, reflecting what is a statutory policy that summary proceedings should in general be finally disposed of following the exercise by one party of the right of appeal to the High Court, the High Court and this Court are given by s144 a restricted discretionary jurisdiction to grant either party leave to bring a further appeal. The Act requires that such a second appeal must be on a question of law arising in the general appeal (s144(1)). It follows that the judgment of the High Court which the party seeks to challenge must have been asked to address the question. It would be contrary to the policy of general finality of the first appeal to allow leave to bring a second appeal raising a new question of law not raised in the High Court. Under the terms of s144 leave to appeal to this Court may only be granted for a question of law which by reason of its general or public importance, or for any other reason ought to be submitted to the Court of Appeal for decision. (s144(3)).
It is also well established that, before the High Court or this Court, in the exercise of its discretion, will grant leave or special leave to appeal, that Court will require to be satisfied that there is a tenable argument available on the question of law raised. Again it would be contrary to the statutory policy to grant leave to argue a point which was considered not seriously arguable by the Court asked to grant leave. That is so even if the question concerned is of significant interest to or affects numerous members of the public as we are prepared to assume is the case with the present application.
The present applicant wishes to argue that the periodic element of a parking offence, which is required before it falls into the category prescribed by clause 1 of Part 1 of the Second Schedule to the Transport Act, is provided by the statutory definition of “parking”. The argument requires giving “parking meters” in the Act’s definition of “parking” an expansive meaning so as to include parking receipt dispensers. It is said by the applicant that by reason of the definition it is an element of the word “parking” in paragraph 1 that a vehicle has been stationary for more than 5 minutes. We, however, consider the argument is plainly met by the passage in the judgment of Priestley J set out in paragraph [11] above. That leaves the applicant in the position that he has not shown us that it is arguable that the offence concerned involved parking in excess of a fixed period as required for the offence to be covered by paragraph 1 rather than paragraph 3 of the First Part of the Schedule.
It is clear to us that in the interpretation of the ordinary and natural meaning of the words of the Schedule, in their statutory context, having regard to the scheme and purpose of the statute, the applicant’s argument is untenable. For that reason alone it would be inappropriate to permit the applicant to advance it at a second appeal even if it had been raised by reference to the definition of “parking” in the course of the appeal to the High Court. None of the other arguments the applicant wishes to advance on appeal to this Court addressed issues of law arising on the High Court’s judgment. The test under s144 is accordingly not met.
The application is accordingly dismissed with costs, in the circumstances, of $250 but no disbursements to the respondent.

Solicitors

Simpson Grierson, Auckland, for Respondent

[2003] NZCA 15

25 February 2003