Florov v Auckland City Council HC Auckland CRI 2010-404-97

[2010] NZHC 1247

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-000097

PLAMEN BORISSOV FLOROV

Appellant

v

AUCKLAND CITY COUNCIL

Respondent

Hearing:         5 July 2010

Appearances: Appellant Self-Represented

T C Mayo for the Respondent

Judgment:      19 July 2010

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 19 July 2010 at 3.30 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

To:            P  B  Florov  (Appellant,  Self-Represented)  3H  17  Blake  Street  Ponsonby

Auckland 1011

Auckland  City  Council  (T  C  Mayo,  Senior  Solicitor)  Private  Bag  92516

Wellesley Street Auckland 1141 for the Respondent

FLOROV V AUCKLAND CITY COUNCIL HC AK CRI-2010-404-000097  19 July 2010

[1]      Plamen  Florov  represents  himself  in  an  appeal  against  conviction  and sentence, following a defended hearing in the Auckland District Court.  Mr Florov was charged with parking his motor vehicle on a bus stop in Customs Street East in the central business district of Auckland City.

[2]      He is a taxi driver.   The explanation he gave was that he had picked up a female passenger in the Viaduct Basin.  Whilst he was taking her en route to Parnell, he had stopped, at her request, at Customs Street East, so she could pick up a key for her flat.   There is a taxi rank in Customs Street East, but this was full, and so Mr Florov parked behind the last car in the taxi rank, which meant that his vehicle was parked in the bus stop situated behind the taxi cab rank.   He said he did this because he was concerned for his passenger’s safety.  She was quite drunk and it was in the early hours of the morning, so he wanted to park close to where she needed to go to collect the key.

[3]      While  his  passenger  was  away  from  the  car,  an  Auckland  City Council parking officer came up to Mr Florov and asked him to move his car out of the bus stop.  Mr Florov explained the circumstances of how he came to be in the bus stop. The parking officer gave evidence that he waited from 2.52 am to 2.55 am, but saw no passenger.   Seemingly, he did not accept Mr Florov’s explanation, and so, at

3.01 am, a ticket was issued.

[4]      Mr Florov considered that the circumstances provided a reasonable excuse for him being in the bus stop, and, for that reason, he is quite affronted at having received an infringement notice.   What is important, however, is that he does not dispute that he was parked on a bus stop for a short period of time.   This acknowledgement by him is sufficient to determine the appeal.  There is no available defence to a taxi driver of parking on a bus stop.  Such a defence apparently once existed, but it was repealed in 2007.

[5]      The restriction on other vehicles parking in a bus stop is a strict liability offence.  Since Mr Florov does not dispute that his vehicle was parked in a bus stop, that answers his appeal against conviction.  The conviction must stand, as must the penalty which resulted from that conviction.  Mr Florov did not address me on the

appeal against sentence.  There is nothing about the penalty that was imposed which would cause me to consider interfering with it.  This part of the appeal must also be dismissed.

[6]      Mr  Florov  drew  my  attention  to  a  document  issued  by  the  authority responsible  for  licensing taxi  drivers.    The  relevant  part  of  the  document  is  as follows:

Duties of drivers relating to obstruction of other small passenger service vehicles or road

A  driver  of  a  small  passenger  service  vehicle  that  is  not  immediately available for hire must not allow that vehicle to be parked in a place or manner that is likely to impede or interfere with the operation of another small passenger vehicle that is available for hire.

A driver of a small passenger service vehicle must not stop the vehicle on a road longer than is reasonably necessary for the purpose of loading or unloading luggage, picking up or setting down passengers, or for any other lawful purpose.  Unless the small passenger vehicle is:

(a)      on a designated stand; or

(b)      lawfully parked; or

(c)      waiting for a hirer who has already hired the vehicle.

…

[7]      Mr Florov considers that he comes within paragraph (c) above because he was  waiting  for  a  hirer  who  had  already  hired  his  vehicle.    The  exception  in paragraph  (c)  is  distinct  from  the  exception  in  paragraph  (b)  of  being lawfully parked.  It seems, therefore, that Mr Florov has understood the exception in (c) to apply to cases where a hirer would not be lawfully parked.  Thus parking in a bus stop would come within paragraph (c) whenever the required circumstances in (c) were present.  I can understand how Mr Florov has arrived at this interpretation.  It seems a proper interpretation of the document to me.  However, Mr Florov has not provided me with authority to establish that the document he relies on is sufficient to countermand the prohibition against parking in a bus stop, which r 6.15 of the Land Transport (Road User) Rules 2004 imposes.

[8]      Mr Florov has no doubt been hampered in establishing his defence by his decision to represent himself.  But if he wishes to continue to rely on what appears to be an exemption allowed for in this document, he will need to be able to establish that it has the necessary authority to support such reliance.

[9]      There is another circumstance which Mr Florov raised in this appeal which his being self-represented has made difficult to pursue.  Because this is an appeal, this Court cannot conduct a hearing de novo into the circumstances which have led to the issue of the infringement notice.  This is essentially what Mr Florov attempted to achieve when he raised this matter.  Mr Florov produced fresh evidence which the respondent did not oppose the Court receiving.  This was a responsible stance for the respondent to take, given that Mr Florov was self-represented, and the fresh evidence could not influence the outcome of the appeal.

[10]     What the fresh evidence does show is the basis of a potential defence based on  abuse  of  process.     Mr  Florov  considers  that  the  officer  who  issued  the infringement notice is targeting him.   He produced evidence to show that he had received a number of infringement notices from this parking officer.  It seems that this officer is in his spare time a taxi driver for a different company from Mr Florov.

[11]     The infringement notice in this appeal shows that it was issued at 3.00 am in the morning, which is a time at which buses are not usually running.  The Auckland City Council  record  details  supplied  by the  parking  officer  appear  to  be  partly inaccurate.   The pro forma record sheet contains a check box for noting if the infringing vehicle is a taxi.  This has been checked as “no”.  This would have meant that the official record details the Auckland City Council received from its parking officer gave the impression that Mr Florov’s vehicle was a private vehicle that had parked in a bus stop in the early hours of the morning.

[12]     Mr Florov sent a letter of explanation to the Council setting out why he had parked in the bus stop.   In that letter he described his vehicle as being a taxi. Whoever at the Council read this explanation may have been influenced by the official record, which identified the vehicle as not being a taxi.   This may have influenced the person dealing with the matter to reject Mr Florov’s explanation and

so decide not to waive enforcing the infringement.   The opportunity, therefore, of Mr Florov’s  explanation  being  accepted  as  excusing  the  infringement  in  the circumstances was lost.  When this is taken with the other complaints, which are to be seen in the fresh evidence about the conduct of the parking officer responsible for issuing the  infringement  notice,  the  foundation  for  a  potential  abuse  of  process defence starts to emerge.  However, running any such defence would require careful preparation.  Furthermore, it could only be raised at the first instance hearing.  It is not something that can be raised for the first time in an appeal.   The Auckland City Council and the parking officer concerned would need the opportunity to be heard in defence of such an accusation.   I would think that a defence of abuse of process could only be done effectively with proper legal representation.

[13]     I am aware that Mr Florov is appealing his convictions of other parking infringements that the same officer has issued.  From the material Mr Florov made available to me, it is obvious that he has spent a large part of his time preparing the case he wants to make against the various parking infringements he has received.  If he wishes to proceed down this pathway, it would be best for him to seek legal advice on whether or not the suspicions he currently has of being unfairly and improperly targeted have some foundation.

Result

[14]     The appeal is dismissed.

Duffy J