Ely v Wellington City Council
[2012] NZHC 477
•20 March 2012
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2011-485-000110 [2012] NZHC 477
BETWEEN NORMAN RICHARD ELY Appellant
ANDWELLINGTON CITY COUNCIL Respondent
Hearing: 20 March 2012
Counsel: Appellant in person
B J Lupton for Respondent
Judgment: 20 March 2012
ORAL JUDGMENT OF COLLINS J
Introduction
[1] Mr Ely is a taxi driver. He properly accepts that on 14 April 2011 he parked his taxi on a footpath in Molesworth Street, Wellington. He did so in order to assist a passenger who was in a nearby building and who had arranged for a taxi to convey him elsewhere.
[2] Mr Ely was charged by the respondent with breaching cl 6.14(1) of the Land Transport (Road User) Rule 2004 (the Rules). Two Justices of the Peace heard the charge and determined the infringement notice issued against Mr Ely should be upheld. The Justices of the Peace imposed an infringement fee of $40. Mr Ely now
appeals against the decision of the Justices of the Peace.
ELY V WELLINGTON CITY COUNCIL HC WN CRI-2011-485-000110 [20 March 2012]
Appeal out of time
[3] Mr Ely’s appeal was filed out of time. His reasons for filing his appeal out of time appear in part to be due to administrative errors within the Court system. Mr Ely should not be penalised for those errors. The respondent, quite properly, does not oppose the appellant’s application for leave to appeal out of time. I am satisfied that it is in the interests of justice that Mr Ely’s appeal be heard. Accordingly, his application for leave to file this appeal out of time is granted.
The evidence
[4] At approximately 8.15 am on 14 April 2011 Mr Visser, the “Infrastructure Performance Manager” for the respondent was driving a vehicle down Murphy Street. Murphy Street is a key arterial route from the motorway into the central city area.
[5] Mr Visser is a warranted Enforcement Officer under s 177 of the Local Government Act 2002. He is also warranted by the New Zealand Commissioner of Police as a Traffic Enforcement Officer pursuant to s 208 of the Land Transport Act
1998. His role is to manage traffic compliance and enforcement for the respondent.
[6] While driving down Murphy Street Mr Visser observed the appellant’s taxi parked on the footpath close to 15 Murphy Street. Mr Visser used his mobile phone to take two photographs of what he saw. The photographs show the following:
(1)The footpath on which Mr Ely parked was wide at the place where he had parked.
(2) There are five pedestrians in the photographs. They would have been
able to walk around Mr Ely’s vehicle quite easily.
(3) The road where Mr Ely parked was marked with yellow “No Parking”
lines.
(4)There were not vacant parking spaces on the side of Murphy Street where Mr Ely had parked.
[7] In addition to taking the photographs produced in evidence, Mr Visser made notes of the key points he observed and soon thereafter compiled a jobsheet for the purposes of initiating the issuing of an infringement notice against Mr Ely.
The Rules
[8] Clause 6.14 of the Rules provides:
6.14 Parking on footpaths or cycle paths
(1) A driver or person in charge of a vehicle must not stop, stand, or park the vehicle on a footpath or on a cycle path.
(2) Subclause (1) does not apply to cycles if a road controlling authority indicates otherwise by means of signs or markings or if it installs facilities for the parking, standing, or storage of cycles on a footpath or cycle path.
(3) Nothing in subclause (1) prevents a person from stopping, standing, or parking a cycle, mobility device, or wheeled recreational device on a footpath if doing so does not unreasonably obstruct any other user of the footpath.
[9] “Footpath” is defined in cl 1.6 of the Rules to mean “a path or way principally designed for, and used by, pedestrians; and includes a footbridge”.
General exceptions
[10] General exceptions to the Rules are set out in cl 1.8(1) – (4). Those cls provide:
1.8 General exceptions
(1) A person is not in breach of this rule if that person proves that—
(a) the act or omission complained of took place in response to a situation on a road; and
(b) the situation was not of the person's own making; and
(c) the act or omission was taken—
(i) to avoid the death or injury of a person; or
(ii) if the act or omission did not create a risk of death or injury or greater damage to any property, to avoid damage to any property.
(2) Subclause (1) does not apply if a court is considering, in proceedings for an offence specified in theAct, whether or not a person had complied with this rule.
(3) A person is not in breach of this rule if that person proves that the act or omission complained of—
(a) took place in compliance with the directions of an enforcement officer, a parking warden, a traffic signal, or a traffic sign; or
(b) in the case of an act or omission done by an enforcement officer or a parking warden, was necessary in the execution of the person’s duty.
(4) A person is not in breach of clauses 2.1 to 2.9, 2.13, or 5.3, or Part 6, in relation to a vehicle, if that person proves that—
(a) the vehicle was, at the time of the act or omission complained of, actually engaged in a public work on a road; and
(b) the vehicle was being used on the road with due consideration for other road users; and
(c) the act or omission complained of was reasonably necessary for the purposes of that work; and
(d) he or she took all reasonable care to prevent the occurrence of any accident, mishap, collision, or damage, or any injury to or interference with any person, animal, or property arising because of the act or omission.
Specific exceptions
[11] Clause 6.20 sets out specific exceptions to cls 6.11 and 6.12 of the Rules. Clause 6.11 relates to double parking. Clause 6.12 relates to parallel parking. Clause 6.20(3) provides:
6.20 Exceptions under this Part
...
(3) A driver of any small passenger service vehicle is not in breach of clause 6.11 if the driver proves that—
(a) the act or omission complained of took place during the picking up or setting down of passengers in connection with their carriage for hire or reward and took place with due consideration for the safety and convenience of other road users; and
(b) either—
(i) alternative access for the purpose of picking up or setting down passengers was unavailable; or
(ii) if alternative access was available, that the circumstances existing at the time were such that it was unreasonable to require such access to be used.
It is to be noted, however, that cl 6.20(3) does not relate to cl 6.14 which is the clause the respondent alleges was breached by Mr Ely.
[12] Reference also needs to be made to cl 7.3A of the Rules. That clause bans the use of mobile phones while driving. Clause 7.3A states:
7.3A Ban on use of mobile phones while driving
(1) A driver must not, while driving a vehicle ,—
(a) use a mobile phone to make, receive, or terminate a telephone call; or
(b) use a mobile phone to create, send, or read a text message;
or
(c) use a mobile phone to create, send, or read an email; or
(d) use a mobile phone to create, send, or view a video message;
or
(e) use a mobile phone to communicate in a way similar to a way described in any of paragraphs (b) to (d); or
(f) use a mobile phone in a way other than a way described in any of paragraphs (a) to (e).
Judgment appealed from
[13] In a brief two-page judgment the Justices of the Peace said inter alia:[1]
[1] Wellington City Council v Ely DC Wellington CRI-2011-085-3119, 16 September 2011 at [7] –[8].
We have looked closely at the legal references and precedents provided by the defendant and take note of these where we felt they had application to this case. The fact as we see it, the vehicle in this instance was parked on the footpath in a way that obstructed the line of sight from drivers emerging from Little Pipitea Street and those on the right-hand lane of Murphy Street. There was alternative parking available on the left side of the road which we accept would have created some danger for loading and unloading of the taxi. However, in view of the alternatives that were available we do not accept the defendant had to park in the position he did, contrary to r 6.14(1) of the Land Transport (Road User) Rule.
We have looked closely at the exceptions provided by the legislation but these were not available to give relief to the defendant. In all circumstances of this case we find the charge proved beyond reasonable doubt and Mr Ely is ordered to pay $40 with Court costs of $132.89.
Grounds of appeal
[14] Mr Ely represented himself before the Justices of the Peace and in this Court. He did so very ably and was not disadvantaged by his lack of formal legal training.
[15] When distilled to their basic elements Mr Ely’s grounds of appeal are:
(1)The photographs taken by Mr Visser were taken in breach of cl 7.3A of the Rules and should not have been admitted in evidence against him;
(2)That the photographs were taken by a “camera car” in breach of the New Zealand Bill of Rights Act 1990; alternatively, the Rules breached the New Zealand Bill of Rights Act 1990 because they effectively preclude taxi drivers from acting in the way which Mr Ely did on the morning in question;
(3) That the Justices of the Peace had not adequately considered the
appellant’s submissions;
(4)That the Justices of the Peace erred in law by not properly applying the exception clauses (cls 1.8 and 6.20) of the Rules;
(5)The Justices failed to give due consideration to guidelines issued by the respondent.
Respondent’s case
[16] I will explain the respondent’s case when considering each of Mr Ely’s
grounds of appeal.
First ground of appeal
[17] Mr Ely is correct when he submits that Mr Visser took the two photographs presented in evidence in breach of cl 7.3A(1)(f) of the Rules. That is to say, Mr Visser used “a mobile phone in a way other than a way described in paragraphs (a) to (e)” of cl 7.3A(1) of the Rules.
[18] The respondent submits however that Mr Visser’s use of the mobile phone was covered by the general exception provided in cl 1.8(3) of the Rules. That is to say, it is the respondent’s case that Mr Visser’s use of the mobile phone to take photographs was necessary in the execution of his duty.
[19] I do not agree with the respondent on this point. While it was no doubt helpful and convenient for Mr Visser to photograph what he saw, it was not necessary for him to do so. It would have been quite sufficient for Mr Visser to have made a note of what he saw and then given evidence of what he had observed.
[20] Having concluded that the photographic evidence was improperly obtained I put to one side whether or not that evidence could nevertheless had been admitted pursuant to s 30(2)(b) of the Evidence Act 2006. It is unnecessary to undertake that assessment in the circumstances of this case because the respondent’s case was not dependent on the photographs. Mr Visser’s evidence was:[2]
[2] Wellington City Council v Ely DC Wellington CRI-2011-085-3119 Notes of Evidence,
16 September 2011 at 2.
At the time traffic was very ... busy. It was, ..., peak hour commuter traffic.
..., I was stationary in the left lane and I observed a car parked on the
footpath on the western side of the road, approximately adjacent to number
15. ..., as the traffic was stationary, I took a photo of that vehicle. The traffic then moved a bit further and I observed the registration of that
vehicle. ..., I then made notes in my enforcement notebook of the time, date,
location, registration of the vehicle and then took a second photo.
[21] Thus, while I agree with Mr Ely that the photographs should not have been taken by Mr Visser while he was driving a car, the respondent’s case was not dependent upon those photographs.
Second ground of appeal
[22] The first limb of the second ground of appeal appears to have been based
upon a misunderstanding that the photographs were taken by a “camera car”.
[23] I agree with the respondent that as the second ground of appeal was based upon a factual misunderstanding it is not necessary for it to be considered any further.
[24] In his submissions today Mr Ely has said that:
[it is] contrary to the Bill of Rights for the Government of the day to enact legislation that revokes a clause giving Taxi drivers exemption from the law and denying them their right to carry out their duties in safely picking up and dropping off passengers which has been given to them under other legislation.
[25] I interpret this submission to be a challenge to the vires of the Rules, in at least to the extent that they prohibit taxi drivers from conducting themselves in the way Mr Ely did on the morning of 14 April 2011.
[26] The respondent suggests the New Zealand Bill of Rights Act is not engaged.
[27] I have given careful consideration to this issue. In particular I have focused upon the question of whether or not the right to freedom of movement provisions in s 18 of the New Zealand Bill of Rights Act may be engaged. In the end I have concluded that provision has not been breached. One of the purposes of s 18 is to
allow people to move freely within the state and to travel by their chosen means.[3]
[3] Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary
(LexisNexis NZ Limited, Wellington, 2005).
However, I can find no authority in New Zealand or in cognate jurisdictions that would support Mr Ely’s submission that the Rules are incompatible with any provision of the New Zealand Bill of Rights 1990.
Third ground of appeal
[28] None of the general exceptions to the Rules set out in cl 1.8 of the Rules are relevant. In particular, cl 1.8(4) does not apply because Mr Ely was not “engaged in a public work on a road”. The words “engaged in a public work on a road” suggest that to satisfy this aspect of the general exception the vehicle would need to be involved in performing a function that was for the general benefit of the public. A vehicle involved in road repair work would be an obvious example of a vehicle that was “engaged in a public work on a road”. I think that it would stretch too far the natural and ordinary meaning of the words in question if I were to hold that a taxi vehicle, awaiting a passenger was “engaged in a public work on a road”. The provision of a taxi service for a customer is a private arrangement and not a “public work”. My conclusion on this point is reinforced by the fact that cl 1.8(4) of the Rules is based on the now repealed reg 37 of the Traffic Regulations 1976. That regulation provided an exception for a vehicle for public works or trade purposes. The fact that the Executive removed reference to vehicles used for trade purposes from cl 1.8(4) of the Rules suggests the words “engaged in a public work on a road” have quite a limited meaning.
[29] As noted earlier, none of the specific exceptions set out in cl 6.20 of the
Rules applies to parking on footpaths.
Fourth ground of appeal
[30] Mr Ely submits that the respondent, and the Court below, failed to have proper regard to guidelines issued by the respondent to its parking wardens in 2002.
Amongst other matters, the guidelines urged parking wardens to give illegally parked taxis a reasonable opportunity to move before issuing infringement notices.
[31] There is a dispute as to whether or not those guidelines have been revoked. I agree with Mr Ely that if those guidelines had been revoked then there would need to have been evidence establishing that fact before the Justices of the Peace could have concluded there had been a revocation.
[32] However, again, unfortunately for Mr Ely I do not believe this point is of great assistance to him. The guidelines cannot not usurp the Rules.
Conclusion
[33] Mr Visser’s observations on the morning of 14 April 2011 more than adequately enabled the Court below to conclude beyond reasonable doubt that Mr Ely did park his vehicle on a footpath contrary to cl 6.14 of the Rules. None of the exceptions to the Rules applies to r 6.14 in the circumstances of this case.
[34] Accordingly, I have no alternative but to uphold the decision of the Court
below and dismiss Mr Ely’s appeal.
[35] I have given consideration to the respondent’s request that costs be imposed
against Mr Ely pursuant to s 8 of the Costs in Criminal Cases Act 1967. I can see no reason for doing so in the circumstances of this case.
D B Collins J
Solicitors:
DLA Phillips Fox, Wellington for Respondent
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