Florov v Auckland City Council HC Auckland CRI 2010-404-143

[2010] NZHC 1932

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-143

PLAMEN FLOROV

Appellant

v

AUCKLAND CITY COUNCIL

Respondent

Hearing:         2 November 2010

Appearances: Appellant in Person

R Singh for the Respondent

Judgment:      2 November 2010

JUDGMENT OF ELLIS J

This judgment was delivered by me on 2 November 2010 at 3.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:           R R Singh, Auckland Council, Private Bag 92300, Auckland 1142

Copy to:            P Florov, 3H 17 Blake Street, Ponsonby, Auckland 1011

FLOROV V AUCKLAND CITY COUNCIL HC AK CRI-2010-404-143  2 November 2010

[1]     The appellant Mr Florov was issued with a stationary vehicle offence infringement notice in relation to events that occurred on 31 August 2008 at approximately 1.45 am.  The infringement notice states that Mr Florov had parked his car in a bus stop.   Apparently the car in question was Mr Florov’s taxi.   The infringement  notice records  that  the parking warden  who  issued  the notice was “Officer 681”.

[2]      After receiving the infringement notice Mr Florov advised the City Council that he sought a defended court hearing in relation to the notice.   On 10 October

2008 the Council wrote to Mr Florov advising that the prosecutor would contact him in approximately four weeks with a court date for the defended hearing.  Three days later he received a letter from the prosecutor advising that the defended hearing had been scheduled to be heard some five months later, on Thursday 19 March 2009.

[3]      It  appears  that  Mr  Florov  in  fact  left  New  Zealand  for  Australia  on

14 January 2009 and did not return until later in the year, after the defended hearing date.   The notes of the hearing, which occurred before two Justices of the Peace, show that Mr Florov did not attend the hearing and that the Justices, at the request of the prosecutor, simply reinstated the original fine of $60 and ordered Mr Florov to pay court costs of $30.

[4]      Counsel for the respondent Council advised me that Mr Florov was told at some point following the hearing of his ability to apply for a re-hearing at the District Court by making an application under s 78B of the Summary Proceedings Act.  Mr Florov, however, denies this and he did not avail himself of that option on his return to New Zealand.  Rather, on 8 April 2010, 13 months after the hearing, Mr Florov filed a notice of appeal in the Auckland District Court.  Mr Florov says that he filed other, earlier notices of appeal but that these had been lost by the Court.

[5]      For whatever reason, Mr Florov’s notice of appeal took a further six months to be transferred from the District Court to this Court, it being received here on

14 October 2010.  I simply note that this delay perhaps lends some credence to what

Mr Florov says about the fate of the earlier notices that he says he filed.

[6]      On receipt of the appeal a notice of hearing was immediately sent out by the

High Court registry.  The notice advised that the appeal was scheduled to be heard at

10 am today.   Counsel for the City Council sought an adjournment due to the unavailability of the original prosecutor.  That was opposed by Mr Florov.  When the file  came  before  me  yesterday  it  appeared  to  me  to  be  in  the  interests  of  all concerned to deal with the matter sooner rather than later and accordingly I directed that the hearing should take place as originally scheduled.  In this respect I record my appreciation to Miss Singh for the speed with which she rose to the challenge of preparing submissions at short notice.

[7]      In the ordinary course I would be inclined simply to accept Miss Singh’s submissions  that  Mr  Florov’s  appeal  was  filed  hopelessly out  of  time  and  that (regardless of whether he received any advice from the Council to this effect) the proper course was to apply for a rehearing under s 78B.  Obviously the fact that, due to Mr Florov’s absence overseas, there was no defended hearing before the justices presents a particular difficulty in dealing with the substance of the appeal which was essentially that Mr Florov says that he was being victimised by the parking warden who issues the infringement notice, that person being a taxi driver working for a company in competition with Mr Florov during the day.  It is relevant to note at this point  that  the  same  grounds  were,  earlier  this  year,  unsuccessfully  pursued  by Mr Florov in relation to a different infringement notice in an appeal before Duffy J:

Florov v Auckland City Council. [1]

[1] Florov v Auckland City Council HC Auckland CRI-2010-404-000097, 19 July 2010.

[8]      As well as the difficulties alluded to by Duffy J in her judgment (namely the difficulties with a self-represented person running what appears to be an abuse of process argument, particularly when it is raised for the first time on appeal, and the fact that parking on a bus stop is a strict liability offence) Mr Florov had a further problem before me.  That was, even on the basis of the material that he supplied to me (the production of which the Council very sensibly did not oppose), Parking Warden 681 (who issued the 31 August 2008 infringement notice) is not the parking warden whom Mr Florov alleges is victimising him.  That parking warden has been assigned the number 256 (and, Mr Florov says, 253). Although Mr Florov

attempted  to  explain  this  by  saying  that  Parking  Wardens  681  and  256  were somehow working in concert, that is not evidence I can, in the context of this appeal, accept.

[9]      For  reasons  both  of  process  and  substance,  therefore,  I  consider  that Mr Florov’s appeal must be dismissed.  However I do record that in speaking with him about the future he advised that he had very commendably taken matters into his own hands and ceased driving his taxi at night.  The effect of this step is it seems to me, reflected in the computer generated list of the infringement notices issued to Mr Florov over the last 5 years provided to the Court by Miss Singh.  That list shows that 8 of the 17 notices issued to Mr Florov in the period August 2008 to September

2009 were issued by either Parking Warden 253 or Parking Warden 256 (Mr Florov has, however, been exempted from some of these).  After September 2009, however, there have been no infringement notices issued by parking wardens bearing either of these numbers.

[10]     At  the  end  of  the  hearing  of  the  appeal  I  attempted  to  ascertain  from Mr Florov the number of Court proceedings (either in this Court or the District Court) relating to infringement notices he had outstanding.   To the extent there is more than one it is plainly desirable that they are managed and heard together.   It became clear to me, however, that Mr Florov was himself uncertain about this and was also unclear about how many outstanding fines he had owing.  It seems to me that it is in the interests not only of the orderly business of the Courts but also in the interests of the City Council that some clarity for the future is forthcoming.   I therefore record my view that the Council should advise Mr Florov by letter as soon as possible of the precise status of any outstanding matters between them.  To the extent that any of these matters also involve the Courts I trust that all appropriate steps will be taken to manage them in an orderly way.

[11]     As I have said, the appeal is dismissed.  I make no order as to costs.

Rebecca Ellis J