Education Consultancy Services (2012) Limited v Wellington City Council

[2013] NZHC 1734

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-485-31 [2013] NZHC 1734

BETWEEN	EDUCATION CONSULTANCY SERVICES (2012) LIMITED Appellant
AND	WELLINGTON CITY COUNCIL Respondent

Hearing:	9 July 2013
Appearances:	D. Sutton on behalf of the appellant A.M. White and Mr Booth - Counsel for the Respondent
Judgment:	10 July 2013

JUDGMENT OF JUSTICE D.I. GENDALL

This judgment was delivered by me on10 July 2013 at 3.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ..................................................................

EDUCATION CONSULTANCY SERVICES (2012) LIMITED v WELLINGTON CITY COUNCIL [2013] NZHC 1734 [10 July 2013]

Introduction

[1]      The appellant was issued with two infringement notices by the respondent. The first alleged that on 12 December 2012 it had breached clause 13.1 of Part 7 of the Wellington Consolidated Bylaw (the Bylaw) by parking in a pay and display area in Cable Street, Wellington while not displaying a receipt ticket (the first offence).

[2]      The second infringement notice alleged that on 7 January 2013 the appellant had breached clause 13.1 of Part 7 of the Bylaw by parking in a coupon parking area in Martin Square, Wellington in excess of two hours while not displaying a current coupon (the second offence).

[3]      On 26 April 2013 a hearing in respect of these infringement notices was held before Justices of the Peace after what I understand were two previous adjournments granted at the appellant’s request.   The appellant however was not present or represented at the hearing on 26 April 2013 and the matters were determined by way of formal proof.  The Justices of the Peace held that both the first offence and the second offence were proven and imposed penalties. On the first a fine of $40.00 and court costs of $30.16 and on the second a fine of $40.00 and court costs of $30.67. The appellant now appeals against those findings.

[4]      The burden in this appeal lies on the appellant which must satisfy the Court that the Justices of the Peace were not justified in entering the convictions they did or at least that their minds should have been left in a state of reasonable doubt – Page v Police [1964] NZLR 974 (CA).

Factual Background

[5]      The facts as briefly stated were that, as to the first offence, on 12 December

2012 the appellant as the registered owner of vehicle CKY500 (through its agent Mr Sutton who appeared before me on this appeal) had the vehicle parked in a space on the road in Cable Street, Wellington in a parking meter area that was controlled by a multiple parking meter for reserved parking upon payment of a fee.  Signs showing that the vehicle was parked in a parking meter area were located within 5 metres of

both the front and the rear of the vehicle and these signs stated “Pay and Display

Parking 2 Hours Maximum Pay at Machine”.

[6]      The appellant’s vehicle was not displaying a ticket from the multiple parking meter  showing  that  payment  for  a  period  of  parking  had  been  made.    An infringement notice for this first offence was issued.

[7]      As to the second offence, the evidence before the Court was that on 7 January

2013, the same vehicle owned by the appellant was parked in a coupon parking area in Martin Square, Te Aro, Wellington from 2.57 pm to 5.05 pm being a period of more  than  2  hours.    Martin  Square  pursuant  to  clause  8.1  of  the  Bylaw  was designated a coupon parking area.  This was reflected by signs in place there which were located 2 metres from the front of the vehicle and 20 metres from the rear of the vehicle.  Those signs stated “Coupon Parking 8.00 am to 6.00 pm Mon-Fri.  First

2 hours free.  Display Coupons Phone [phone]”.

[8]      The appellant’s vehicle did not display a valid coupon.   The respondent’s position is that accordingly the appellant failed to comply with the Bylaw as its vehicle was parked in a coupon parking area for a period in excess of 2 hours while not displaying a clearly validated coupon. This does not appear to be disputed by the appellant.

The Bylaw

[9]      Clause 13.1 of the Bylaw states:

.... every person commits an offence against this Bylaw who ....

fails to comply in all respects with any prohibition or restriction or direction or requirement indicated by the lines, domes, areas, markings, parking meters, multiple parking meters, traffic signs, or other signs and notices, laid down, placed, or made, or erected, in or on any road, building, or other area controlled by the Council pursuant to any provisions of this Bylaw, or any resolutions made thereunder.

[10]     On its face, the appellant here would appear to be in breach of clause 13.1 of the Bylaw both with respect to the first offence and the second offence.  Mr Sutton who appeared before me on behalf of the appellant has acknowledged first, that he was in charge of the vehicle for the appellant at the relevant times and secondly, that the facts as set out by the respondent as to the vehicle being parked on 12 December

2012 in a pay and display area while not displaying a receipt ticket and on 7 January

2013 in a coupon parking area in excess of 2 hours while not displaying a current coupon, are not essentially disputed.  Instead, I now turn to the specific grounds of appeal put forward by the appellant in its Notice of Appeal, and advanced before me.

The First Offence

[11]     The Notice of Appeal states that the appellant has appealed this decision on the basis that:

I (Mr Sutton) sought to pay this fine but was advised that there were no fines outstanding against me.  This was not an admission of guilt but because I was indisposed at the date of the hearing. Further, the WCC sent me a letter advising me that as I had requested a Court hearing, Court fees would be payable.  I was advised in a second letter that the WCC were not prepared to take the case to Court unless I could provide them with evidence I had complied with the relevant parking restrictions.  This was perplexing and afforded me the view that access to justice was at the discretion of the WCC.

Both because liability to fees for the District Court hearing was indicated and because Mr Carmichael (Council prosecutor) attempted to mislead me, both clear attempts to frustrate the appellant’s pursuit of justice, exemplary damages are appropriate.

[12]     By way of initial submission, counsel for the respondent contended that the matters raised in this Notice of Appeal had no relevance to a determination of whether or not the appellant committed the first infringement offence.   I tend to agree that this is the case.   As outlined above, the evidence provided by the respondent which has been uncontested by the appellant shows that on 12 December

2013 the appellant committed the first offence in terms of clause 13.1 of the Bylaw.

[13]     Despite this conclusion I will nevertheless consider now  the  grounds  of appeal in the appellant’s Notice as outlined above.

[14]     First, in this Notice of Appeal and his submissions, Mr Sutton claims that he “placed reliance” on the fact that when he tried to pay the fines in question directly prior to the District Court hearing he was advised that no fines were outstanding by Wellington Parking & Infringement Services (WPIS).  As a result, although Mr Sutton does state he was “indisposed at the date of the hearing” in his Notice of Appeal, it is suggested now that he believed the appellant no longer had to pay the fines or attend the District Court hearing, a hearing that in fact he had requested earlier.

[15]     On   this,   once  Mr   Sutton   requested  the   District  Court  hearing,  the infringement notice was referred to that Court and therefore it seems was no longer dealt with by the WPIS system.  Accordingly it follows that the appellant would not have been able to pay the infringement fees at WPIS and any fine payment would need to have been made through the District Court. This did not occur.

[16]     Further, it does seem that WPIS had been in contact with Mr Sutton on behalf of the appellant on several occasions at the time confirming the dates of the District Court hearing.   This would clearly tend to show the infringement fees were outstanding and that the respondent was still proceeding to a hearing in the District Court.  All this, as I see it, flies in the face of Mr Sutton’s present allegation that throughout the appellant was seeking to pay the fines but was told they were not outstanding.

[17]     Next, Mr Sutton purports to put before the Court (without seeking leave under r 20.16 High Court Rules) three letters sent to him from Mr Carmichael at WPIS which it seems were available but not put to the District Court at the earlier hearing of this matter.

[18]     Nevertheless, assuming now that leave of the Court would be granted for the production of these letters, in any event, as I see it they do not assist the appellant’s position here.  In my view, these letters cannot be seen as an attempt to mislead the appellant, despite his claims to the contrary.  The letters simply state that the Court can impose costs in situations such as this and if imposed, the letter sets out what those costs could be ($30.67 - $132.89) as prescribed in Schedule 2 of the Summary Proceedings Regulations 1958.  Although strictly speaking all this is not relevant to determining whether the infringement offence here was committed or not, in any event the statements made in the letters are factual and I do not regard them in any sense as an attempt to mislead or unduly influence any decisions the appellant might take.

[19]     Finally, in this Notice of Appeal outlined at para [11] above, the appellant appears to claim that it follows from his allegation that the respondent has attempted

to mislead Mr Sutton and the appellant and to frustrate its pursuit of justice, that an award of exemplary damages is appropriate here.

[20]     On this aspect, at the outset it needs to be noted that if a claim for exemplary damages was to be made by the appellant, this would need to be brought in a separate and fully documented civil proceeding.   No  such proceeding has been issued however.

[21]     But, in any event, it is clear from the authorities that an award of exemplary damages is an exceptional remedy only to be made in extreme cases of flagrant wrong doing – Couch v Attorney General [2010] NZSC27.  Here, as I have noted above, I am satisfied that the respondent has not been a party to any flagrant wrong doing in its dealings with the appellant in this case.  There is no evidence before the Court of any kind to even suggest that the respondent attempted to mislead the appellant in any way nor to frustrate its pursuit of justice in this case.  The threat by the appellant of  a claim against the respondent for  exemplary damages here is entirely misplaced and inappropriate.

[22]     In conclusion, all the appellant’s grounds of objection contained in its Notice of Appeal with respect to this first offence cannot avail it of any defence here.  The appeal in respect of the first offence must be dismissed.

The Second Offence

[23]     The appellant’s Notice of Appeal with respect to the second offence indicates that the decision is appealed on the basis that:

I  (Mr  Sutton)  sought  to  pay  this  fine  but  was  advised  by  a  representative of Council’s agent, Tenix Solutions, that there were no fines outstanding against me. This attempt at payment was not an admission of guilt, but because I was indisposed on the date of the hearing.

Further, I was advised that residents’ exemptions did not apply in the area because it was regarded as the CBD.  This is contrary to Bylaw 8.12 when read in conjunction with c7.8.

Further, the WCC sent me a letter advising that as I had requested a hearing, Court fees were payable.  This letter neglected to mention that fees are only payable in the event that the charge is upheld.  As this cannot be other than known to WCC, it constitutes an act of bad faith and an award of exemplary damages to the Appellant is appropriate.

[24]     Again, Ms White, counsel for the respondent contended that these grounds of appeal are not relevant here to determine whether or not the appellant committed the infringement  offence  in  question.     She  maintained  that  the  evidence  here, uncontested by the appellant, clearly proved that on 7 January 2013 the appellant committed an offence under clause 13.1 of the Bylaw.

[25]     Notwithstanding this, I turn again to consider the specific grounds of appeal set out in the appellant’s Notice of Appeal.

[26]     In relation first, to the letters sent to Mr Sutton for the appellant relating to Court fees, secondly, to Mr Sutton’s alleged attempt to pay the infringement fee and thirdly the claim that exemplary damages are appropriate here, the arguments and conclusions I have reached at paras [14] to [22] inclusive above apply here as well and effectively dispose of this aspect of the appeal.

[27]     Further, however, in submissions advanced to me, Mr Sutton claimed that he had attempted to obtain a coupon parking exemption as a resident of the Martin Square area but was advised it was not possible to obtain an exemption.  Although there is no direct evidence before the Court on this issue, it is clear from clause 11 of the Bylaw that the Wellington City Council may by resolution determine to set-aside an area for a clause 7.   Residents’ Parking Scheme or otherwise.   In the CBD of Wellington city it is understandable that no such Residents’ Parking Scheme would apply in central areas and hence the provisions of clause 7 of the Bylaw would have no application.

[28]    Accordingly, there can be no question that non-compliance with parking restrictions which require the display of a current coupon in a coupon parking area (which is dealt with under clause 8 of the Bylaw) constitutes an offence against clause 13.1 of the Bylaw.

[29]     The fact that Mr Sutton was unable to obtain a residents’ coupon parking exemption also does not change the fact here that the appellant’s vehicle was parked in a coupon parking area in excess of 2 hours without displaying the valid coupon and thus the second offence was clearly committed.

[30]     Finally, it is useful to note that the exemptions provided for in clauses 7 and 8 of the Bylaw are not a right for all those living in coupon parking areas, as it merely empowers the Council to grant an exemption in its discretion.  That did not occur here.

[31]     For all the above reasons, the appellant’s appeal with respect to the second offence must also fail.

Conclusion

[32]     I consider that the decisions of the Justices of the Peace on both the first and the second offences were correct.  The appellant’s appeal here  fails in its entirety and accordingly it is dismissed.

[33] As to costs, in the event that appeals are dismissed, respondents are entitled to seek costs in accordance with the Costs in Criminal Cases Act 1967, and the respondent does seek costs under that Act of $226.00. The appellant however opposes costs and submits essentially that it is an innocent party here. With respect I do not accept this is the position.

[34]     There is no restriction on an award of costs against a defendant and costs in my view may properly be awarded against the appellant here.  The appeal in this case had no merit.   Many of the matters raised were irrelevant and it seems Mr Sutton on his own admission has raised similar arguments against the respondent in the past.   Further, the threat to sue the respondent for exemplary damages in an appeal against conviction is not appropriate here.

[35]     In all the circumstances prevailing in this case I consider that an award of costs is appropriate.  There will be costs in favour of the respondent in the sum of

$226.00.

‘Justice D.I. Gendall’