Grueber v New Zealand Transport Agency

[2013] NZHC 2821

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000070 [2013] NZHC 2821

HANS BERND GRUEBER

v

NEW ZEALAND TRANSPORT AGENCY

Hearing:                   On the papers

Judgment:                30 October 2013

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 30 October 2013 at 3.30 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

GRUEBER v NZ TRANSPORT AGENCY [2013] NZHC 2821 [30 October 2013]

[1]      In my decision delivered 27 March 2013 I dismissed Dr Grueber’s appeal against Judge Hinton’s refusal to grant an application for further disclosure under s

30 of the Criminal Disclosure Act 2008 (CDA).  Dr Grueber’s application related to wide-ranging disclosure sought against the New Zealand Transport Agency (NZTA) in an effort to defend a prosecution under s 54(1) of the Land Transport Management Act  2003  (LTMA)  for  failing  to  pay  a  toll  on  the  toll  section  of  the  northern motorway on the basis that the Order in Council establishing the toll road was invalid.

[2]      I held that, given relevant statutory context, including the function of the NZTA, there was no jurisdiction to consider the validity of Order in Council in the context of the prosecution.  As a result, the information that Dr Grueber sought was not relevant and not properly the subject of a disclosure order.

[3]      Dr Grueber has applied for leave to appeal to the Court of Appeal against my decision.  Such leave may be granted under s 144 of the Summary Proceedings Act

1957 provided that the issue on the appeal raises a question of law and the question is one which, by reason of its general and public importance or for any other reason, ought to be submitted to the Court of Appeal.  Approaching an application of this kind, I bear in mind the Court of Appeal’s observations in R v Slater that:1

Thus s 144 was not intended to provide a second tier of appeals from decisions of a district court in proceedings under the Summary Proceedings Act.  Parliament intended such proceedings to be brought to finality with the defendant having an appeal to the High Court other than when the conditions it has specified in sub ss (2) and (3) are met and leave to appeal is granted. Neither the determination of what comprises a question of law nor the question whether that point of law raises a question of general or public importance are to be diluted.

[4]      In his notice of application for leave to appeal Dr Grueber identified the following questions of law:

(a)      My decision was contrary to the decision of the House of Lords in

Boddington v British Transport Police;2

1 R v Slater [1997] 1 NZLR 211 (CA) at 215.

2 Boddington v British Transport Police [1999] 2 AC 143 (HL).

(b)      There were errors in the application of ss 7, 46 and 48 of the LTMA;

(c)       The ultra vires principle in the context of a public law defence in criminal proceedings.

[5]      In  his  written  submissions  Dr  Grueber  repeated  much  of  his  original argument.  He said, in reliance on Boddington, that he is entitled to raise a public law defence.    He  submitted,  further,  that  since  the  term  “public  road  controlling authority”  appears  multiple  times  in  ss  46  and  48,  NZTA must  be  involved  in establishing road tolls.  He disputed the factual accuracy of NZTA’s removal from the process and argued that I erroneously assumed that it had no relevant documents under its control.  At the very least, he argued, I should have differentiated between which documents could be disclosed.

[6]      NZTA submitted that the question of law in this case is narrow: whether documents were relevant to the criminal case being prosecuted under s 8 of the CDA.  It submitted that the collateral issue – whether the LTMA precludes a public law defence – can be raised during Dr Grueber’s substantive appeal.   Further, it submitted that the collateral issue is not of general or public importance.  Finally, it submitted that there was no error of law.

[7]      In further submissions filed in reply Dr Grueber argued that there is public interest in his appeal because “hundreds of thousands of New Zealand motorists have paid toll on the basis of – as the Appellant alleges – an invalid [Order in Council]”.

[8]      The question of law that Dr Grueber  has identified suggests that he has misunderstood my decision. I held that there was, in principle, jurisdiction to determine a public law defence.  However, I went on to find that in the particular statutory context relevant to this case, Parliament did not intend a public law defence to be available as a collateral challenge.    Although NZTA submitted that this was a collateral issue, my judgment did, in effect, decide that the specific provisions of LTMA preclude  Dr  Grueber’s  public  law  defence  as  a  matter  of  law.    It  was necessary to do so in order to determine whether the disclosure sought was relevant

under s 8 of the CDA.  Thus, there is an appealable question of law; contrary to Dr Grueber’s submissions, this is an issue of statutory interpretation, not a question of fact.

[9]      However, my judgment did not determine the Order in Council’s validity, so that is not an appealable issue. The question of law I was concerned with was a narrow area of statutory interpretation. My decision does not preclude a challenge to the Order in Council in another context. I am not satisfied that there is sufficient general or public importance to grant leave.

[10]     For these reasons, I refuse Dr Grueber’s application for leave to appeal.

P Courtney J