Grueber v New Zealand Land Transport Agency
[2014] NZCA 267
•25 June 2014 at 10:00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA798/2013 [2014] NZCA 267 |
| BETWEEN | HANS B GRUEBER |
| AND | NEW ZEALAND TRANSPORT AGENCY |
| Hearing: | 9 June 2014 |
Court: | Randerson, Keane and MacKenzie JJ |
Counsel: | Applicant in person |
Judgment: | 25 June 2014 at 10:00 am |
JUDGMENT OF THE COURT
A The application for special leave to appeal is dismissed.
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REASONS OF THE COURT
(Given by MacKenzie J)
Dr Grueber is conducting a campaign against the imposition of tolls on the Northern Motorway, north of Auckland. The tolling scheme has been imposed under pt 2 sub-pt 2 of the Land Transport Management Act 2003, by an Order in Council made under s 46 of that Act.[1] The substance of Dr Grueber’s challenge is to the consultation process followed before that Order in Council was made.
[1]Land Transport Management (Road Tolling Scheme for ALPURT B2) Order 2005.
Dr Grueber drove over the tolled section without paying the toll, and was issued with infringement notices in respect of four charges of failing to pay pursuant to s 54 of the Land Transport Management Act. At a defended hearing in the North Shore District Court on 26 June 2012 before two Justices of the Peace, he was found liable and ordered to pay.[2] He appealed the decision to the High Court. The essence of Dr Grueber’s defence, both in the District Court and on that appeal, was that he was not liable to pay the toll because it had not been lawfully imposed.
[2]New Zealand Transport Agency v Grueber DC North Shore CRI-2012-044-2717, 26 June 2012.
Before Dr Grueber’s appeal to the High Court was heard, he made a request for disclosure by the respondent of information relating to the legality of the Order in Council. The Judge hearing the appeal gave Dr Grueber the option of proceeding with the appeal on the basis of the evidence before the District Court, or having the appeal adjourned until the disclosure request had been determined. He elected the second option.
Dr Grueber’s request for disclosure was heard by Judge Hinton in the District Court on 30 January 2013.[3] In an oral judgment, Judge Hinton refused the request. In the course of doing so he said:
[18] … I have mentioned to Dr Grueber that it seems to me, consistent with the Crown position, that his remedy here is to pursue an application for judicial review. I rather suspect (but I may be wrong) that Dr Grueber is sympathetic to that view. He says, however, that this is imposing on the subjects at large and him in particular, an unnecessary financial burden. He is not, he has observed, Kim Dotcom, who might be in a better position to pursue that option.
[3]Grueber v New Zealand Transport Agency DC North Shore CRI-2012-044-6760, 30 January 2013.
Dr Grueber appealed that decision to the High Court. His appeal was heard by Courtney J, who, in a judgment delivered on 27 March 2013, dismissed the appeal.[4] She noted that Dr Grueber’s case involved a collateral challenge to subordinate legislation in the context of a criminal prosecution. She reviewed the authorities on that topic, including the decisions of the House of Lords in R v Wicks,[5] and Boddington v British Transport Police,[6] and two New Zealand High Court decisions applying that line of authority: Harwood v Thames Coromandel District Council,[7] and Moore v New Zealand Police.[8] That line of authority suggests that the possibility of a collateral challenge in the context of a criminal prosecution is a question of statutory construction, in the particular circumstances. Courtney J then reviewed the legislation involved and concluded that in this case, the validity of the Order in Council could not be pursued by way of a collateral challenge in the course of a prosecution for failure to pay the toll. She accordingly dismissed the appeal.
[4]Grueber v New Zealand Transport Agency [2013] NZHC 645.
[5]R v Wicks [1998] AC 92 (HL).
[6]Boddington v British Transport Police [1999] 2 AC 143 (HL).
[7]Harwood v Thames Coromandel District Council [2008] NZAR 518 (HC).
[8]Moore v New Zealand Police [2010] NZAR 406 (HC).
Dr Grueber applied to the High Court for leave to appeal to this Court. Leave was refused by Courtney J on 30 October 2013.[9] Dr Grueber now applies to this Court for special leave to appeal under s 144 of the Summary Proceedings Act 1957.
[9]Grueber v New Zealand Transport Agency [2013] NZHC 2821.
Leave may be granted only if the case involves a question of law that by reason of its general or public importance or for any other reason ought to be submitted to this Court for decision.
The question whether a collateral challenge to the validity of the Order in Council is available on this prosecution is potentially a question which meets the threshold of general or public importance. This Court, in Attorney-General v P F Sugrue Ltd, referred to the issue of collateral challenges and said that over recent decades New Zealand law has largely avoided some of the complexities to be seen in such cases as Boddington v British Transport Police.[10]This Court did not need to consider what the limits to collateral challenges may be, in that case. That issue may be an appropriate one for consideration by this Court.
[10]Attorney-General v P F Sugrue Ltd [2004] 1 NZLR 207 (CA) at [49], referring to Boddington v British Transport Police, above n 6.
However, that issue does not directly arise on this appeal. This is an appeal on an interlocutory matter, namely whether discovery should be given of material which would be relevant to the collateral challenge, if that challenge is permissible. Two particular points arise from the interlocutory nature of the point in issue at this stage. First, discovery in the infringement proceedings is not the only means available to Dr Grueber to obtain the information he seeks. There is no obvious reason why an application under the Official Information Act 1982 would not enable Dr Grueber to obtain the documentation and information which he seeks to advance his case. Second, Dr Grueber will need leave from the High Court at the hearing of the substantive appeal to adduce any further evidence which he may obtain.
In hearing the substantive appeal, either with or without evidence additional to that adduced in the District Court, the High Court will need to address the issue of whether a collateral challenge is possible. Courtney J’s judgment, limited as it is to the question of whether discovery should be ordered, does not finally address that issue between these parties.
We express no view on whether the decision of the High Court on the substantive appeal may involve a question of law which will meet the threshold for the grant of special leave to appeal to this Court. We merely observe that, at this interlocutory stage, the question whether a collateral challenge is possible in this case is not directly in issue to the extent that it is a question which meets that threshold.
For these reasons, the application for special leave to appeal is dismissed.
Solicitors:
Meredith Connell, Auckland for Respondent
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