Grueber v New Zealand Transport Agency

[2013] NZHC 645

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000070 [2013] NZHC 645

BETWEEN  HANS BERND GRUEBER Appellant

ANDNEW ZEALAND TRANSPORT AGENCY Respondent

Hearing:         19 March 2013

Appearances: Appellant in person

K C Chang for Respondent

Judgment:      27 March 2013

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 27 March 2013 at 4:00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date…………………………

Solicitors:           Meredith Connell, P O Box 2213, Auckland 1140

Fax: [phone] – Email: [email protected]

Copy to:             H Grueber, P O Box 162, Silverdale, Auckland 0944

Email: [email protected]

GRUEBER V NZ TRANSPORT AGENCY HC AK CRI-2013-404-000070 [27 March 2013]

Introduction

[1]      The appellant, Dr Hans Grueber, appeals Judge Hinton’s refusal to grant an

application for further disclosure under the Criminal Disclosure Act 2008 (CDA).1

The appeal raises, indirectly, the issue of challenge to subordinate legislation and administrative acts in the context of a criminal prosecution.

[2]      The Land Transport Management Act 2003 (LTMA) permits the Governor- General, by Order in Council made on  the recommendation of the Minister, to establish a road tolling scheme to fund new roads.   In 2005 a toll system was established  to  fund  the  extension  to  the  Northern  Motorway  in  Auckland.2

Dr Grueber was convicted following a defended hearing before Justices of the Peace in the North Shore District Court of four offences under s 54(1) of the LTMA for refusing or failing, without reasonable excuse, to pay the toll for use of the tolled section of the Northern Motorway.3    Dr Grueber accepted that the elements of the offence were made out but defended the prosecution on the ground that the Order in Council establishing the toll road was invalid.

[3]      Dr Grueber had argued that the Northern Motorway is not a “new road” and the toll did not have sufficient support from the local community, both being (on his argument) pre-requisites for a recommendation by the Minister.  He wishes to appeal his convictions on the same grounds.  However, in order to advance his argument he requires access to the documents relating to the Order in Council.  He made a wide- ranging disclosure request to the respondent, the New Zealand Transport Agency (NZTA) under the CDA of  “all evidence regarding the legality of the Order in Council of 11 April 2005” including:

(a)       All  evidence,  documentary  or  otherwise,  as  to  how  Transit  New

Zealand  set  up  the  survey  of  the  communities  affected  by  the proposed toll road;

1 Grueber v New Zealand Transport Agency DC North Shore CRI-2012-044-006760, 30 January

2013.

2 Land Transport Management (Road Tolling for ALPURT B2) Order 2005.

3 New Zealand Transport Agency v Grueber DC North Shore CRI-2012-044-002717, 26 June 2012.

(b)      All evidence, documentary or otherwise, as to:

(i)How Transit New Zealand came to the decision to have the “affected communities” surveyed about the toll option after the submission had not produced the required “high degree” of support;

(ii)Discussions and decisions about the definition of “affected communities” with timeline and how Whangaparaoa was included contrary to the initial definition;

(iii)Which   information   should   be   made   public   and   which information should remain confidential (for instance, the pending proceedings in the Environment Court);

(iv)How the survey company was selected, how the survey was conducted and specifically which information was given at the beginning of the survey to the persons who were being surveyed;

(c)      All legal advice around the question of “affected communities” and how it was extended from the initial definition, which includes only the people between the ALPURT B2 and the Coast to the East (north Orewa to Wenderholm);

(d)All  legal  advice  the  Ministry  of  Transport  and  the  government received about ALPURT B2 as a toll road and in particular any advice which  was  critical  of  the  action  taken  and  around  the  fact  that ALPURT B2 was not a “new road” under the Act;

(e)       All Cabinet papers and minutes regarding the officer-in-charge.

[4]      Dr Grueber’s request was refused on a variety of grounds, including that the material is not relevant to the prosecution.  Dr Grueber applied under s 30 CDA for an order requiring that disclosure.  Judge Hinton held that there was no jurisdiction

to consider the validity of the Order in Council in the context of a prosecution under s 54(1)4; consequently the information that Dr Grueber seeks is not relevant and not properly the subject of an order under s 30 CDA.

[5]      In a general appeal such as this the approach to be taken is that described by the Supreme Court in Austin Nichols & Co v Stichting Lodestar.5     It is for the appellant to satisfy the appellate court that it should differ from the decision under appeal.   Only if the appellate court considers that the first instance judgment is wrong is it justified in interfering and, if so, it should undertake its own assessment of the case.

[6]      Ms Chang, for the Crown, correctly pointed out that Dr Grueber’s appeal, which should have been filed within three days after the decision was made, has been brought out of time6 and that he should have sought leave to bring the appeal.7

Dr Grueber explained that he was unaware of the relevant provisions.   For that reason, and because he has brought the appeal promptly, I grant the necessary leave.

Challenging  subordinate  legislation  or administrative  acts  in  the  context  of criminal prosecution

[7]      In New Zealand there are relatively few decisions concerning the collateral challenge of subordinate legislation in the context of a criminal prosecution.  Such challenges are described as collateral because the subject of the proceeding is not the validity of the subordinate legislation or administrative act as it is, for example, in judicial review proceedings.   However, there are sufficient decisions that, together

with guidance provided by the House of Lords in R v Wicks8  and Boddington v

British Transport Police9  allow the principle to be clearly identified.   In short, a collateral challenge to subordinate legislation or administrative act is permissible in the context of a criminal prosecution, but not necessarily in every case.  Whether it is

permissible depends on the relevant statutory context.

4 The Crown accepts that such a challenge could be made in judicial review proceedings but that

course is beyond Dr Grueber’s financial resources.

5 Austin Nichols & Co v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141
6 Section 116(1A) Summary Proceedings Act 1957.
7 Section 33(3) Criminal Disclosure Act 2008.
8 R v Wicks [1998] AC 92.

9 Boddington v British Transport Police [1999] 2 AC 143.

[8]      In Boddington, which concerned invalidity of railway by-laws prohibiting smoking in carriages, Lord Irvine said:10

The question of the extent to which public law defences may be deployed in criminal proceedings requires consideration of fundamental principle concerning the promotion of the rule of law and fairness to defendants to criminal charges in having a reasonable opportunity to defend themselves. However, sometimes the public interest in orderly administration means that the scope for challenging unlawful conduct by public bodies may have to be circumscribed.

Where there is a tension between these competing interests and principles, the balance between them is ordinarily to be struck by Parliament.   Thus whether a public law defence may be mounted to a criminal charge requires scrutiny of the particular statutory context in which the criminal offence is defined and of any other relevant statutory provisions …

However,  in  every  case  it  will  be  necessary  to  examine  the  particular statutory context to determine whether a court hearing a criminal or civil case has jurisdiction to rule on a defence based upon arguments of validity of subordinate legislation or an administrative act under it.  There are situations in which Parliament may legislate to preclude such challenges being made, in the interest, for example, of promoting certainty about the legitimacy of administrative acts on which the public may have to rely.

[9]      This approach has been adopted in the relatively few New Zealand cases in which this issue has arisen.   In Harwood v Thames Coromandel District Council Randerson J, citing Wicks and Boddington, concluded that a challenge to the validity of dog registration fees in the context of a prosecution for failing to register a dog must fail because the relevant statutory provisions (the Dog Control Act and the Local Government Act) displaced the general principle that an accused person is entitled  to  challenge  the  validity  of  the  public  act  on  which  the  conviction

depended.11

[10]     In Moore v New Zealand Police McKenzie J rejected an attempt to challenge the validity of a bylaw made under the Wanganui District Council (Prohibition of Gang Insignia) Act 2009 in the context of a prosecution under that Act.12 The Judge considered that such a challenge would involve a close examination of the Council’s

decision  making  process,  requiring  both  evidence  and  discovery  of  documents

10 Page 152 and 160.

11 Harwood v Thames Coromandel District Council HC Hamilton A52/02, 10 March 2003 at [29].

12 Moore v New Zealand Police HC Wanganui CRI-2010-483-23, 26 May 2010.

relevant to that process and that the Council would be a necessary party to such proceedings.

Is Dr Grueber entitled to challenge the validity of the Order in Council?

[11]     It is evident that whether Dr Grueber is entitled to challenge the validity of the Order in Council in defending the prosecution requires a careful examination of the relevant statutory context.  The Judge fell into error in concluding that there was no jurisdiction to consider Dr Grueber’s argument without having undertaken that step.  As a result, I turn to consider whether it is open to Dr Grueber to make the challenge he wishes, in which case the disclosure sought would be relevant.  If the statutory context is such as not to permit such a challenge, then the disclosure sought will not be relevant and the Judge’s conclusion will have been correct.

[12]     The purpose of the LTMA, under which the toll system on the Northern Motorway  was  established,  is  identified  at  s  3(1)  which,  at  the  relevant  time, provided that:

The purpose of this Act is to contribute to the aim of achieving an integrated, safe, responsive and sustainable land transport system.

[13]     Section 3(1) was amended in 2008 to add “affordable” after “achieving an”.

[14]     Section 3(2) identifies the means by which the Act is intended to contribute to that purpose. At the relevant time this included providing an “integrated approach to land transport funding and management” and ensuring that land transport funding is allocated in an “efficient and effective manner”.  Subsequently, s 3(2) was amended to add as one of those means improving the flexibility of land transport funding by providing for alternative funding mechanisms.

[15]     The   provisions   in   ss   46-54,   which   relate   to   the   establishment   and management of a road tolling system, are to be viewed against the overall purpose. Sections 46 and 48 are the focus of Dr Grueber’s argument. They provide that:

46       Authority to establish road tolling scheme

(1)      The Governor-General may, by Order in Council made on the recommendation of the Minister, establish a road tolling scheme to provide funds that may be applied by or on behalf of a public road controlling authority for the purposes of—

(a)       1 or more of the following activities, namely, the planning, design, supervision, construction, maintenance, or operation of a new road; and

(b)      meeting any conditions or requirements set out in the order. (2)     An order under subsection (1) must—

(a)       describe (so far as is practicable)—

(i)        the  new  road,  or  part  of  it,  in  respect  of  which  the  toll revenue may be applied; and

(ii)      the road or roads that may be tolled (being the new road and, if the order so provides, a road that meets the requirements of section 48(2)), or the part or parts of those roads that may be tolled; and

(b)       set out any conditions that must be met to the satisfaction of the

Minister, being—

(i)      any conditions that must be met before the public road controlling authority or toll operator may begin tolling; and

(ii)      any other conditions that apply; and

(c)       set out a process by which the Minister will confirm whether he or she is satisfied that the relevant conditions to be met before tolling may begin have been met.

(3)       An order made under subsection (1) may (without limitation)—

(a)       set tolls, or empower the public road controlling authority or toll operator to set tolls within the maximum limit, or according to the method, set out in the order:

(b)       provide for different levels of tolls to be levied in respect of different classes of person or motor vehicles, different times or days, different directions of travel, or different methods of payment, or to be levied on any other differential basis:

(c)       grant exemptions from the obligation to pay tolls under the scheme (whether on a basis referred to in paragraph   (b) or on any other basis   specified  in  the   order),  and  empower   the  public  road controlling authority or toll operator to grant exemptions (which power is subject to any limitations set out in the order):

(d)       state how the tolls are to be collected:

(e)       specify any information that the toll operator or the public road controlling authority is required to provide to the Minister or any other specified person or organisation:

(f)       authorise   the   enforcement   authority   to   have   access   to   law enforcement information held by a holder agency under the Privacy Act 1993 and set out terms and conditions governing that access:

(g)       require the public road controlling authority to prepare a demand management plan in accordance with the order:

(h)       specify  civil  penalties  for  breach  of  conditions  referred  to  in subsection (2)(b)(ii), and establish a procedure for resolving disputes about the application of those penalties:

(i)        require notice of the Minister's confirmation of the matters referred to in subsection (2)(c) to be published in the manner set out in the order.

(4)       An order made under subsection (1) is a regulation for the purposes of the Regulations (Disallowance) Act 1989 and the  Acts and Regulations Publication Act 1989.

…

48       Procedure for recommending making of order under section 46

(1)       The  Minister  must  not  recommend  the  making  of  an  Order  in

Council under section 46(1) unless—

(a)       he or she is satisfied that the activity contributes to the purpose of this Act; and

(b)       he or she has taken into account how the activity—

(i)       assists economic development; and

(ii)      assists safety and personal security; and

(iii)     improves access and mobility; and

(iv)     protects and promotes public health; and

(v)      ensures environmental sustainability; and

(c)       he or she has taken into account—

(i)        any current national land transport strategy, relevant regional land transport strategies, [relevant regional public transport plans,] [any relevant GPS,] and National Energy Efficiency and Conservation Strategy; and

(ii)      the availability of alternative land transport options and the impact of the activity on those options; and

(iii)     the land transport options and alternatives that have been considered by the public road controlling authority; and

(iv)     whether the activity is consistent with current priorities for land transport expenditure; and

(v)      the outcome of consultation undertaken by the public road controlling authority; and

(d)       either—

(i)       the activity is included in the current national land transport programme; or

(ii)      the Minister is satisfied that there is a high degree of support from affected communities; and

(e)       he or she is satisfied that—

(i)       the requirement in subsection (2) (if applicable) is met; and

(ii)      there   is   available   to   road   users   a   feasible,   untolled, alternative route.

(2)       The Minister, must not recommend that an existing road or part of it be tolled unless he or she is satisfied that the existing road or part is located near, and is physically or operationally integral to, the new road in respect of which the tolling revenue will be applied.

(3)       If [the[Agency]] has assessed an activity against any criterion in subsection (1) in the course of performing its functions and duties under section 19 or section 20, the Minister is entitled to rely on that assessment and  need  not separately assess  the activity against that  criterion for the purpose of this section.

(4)       The Minister may, at his or her discretion,—

(a)       recommend or decline to recommend the making of an order under section 46(1):

(b)       after consulting the public road controlling authority about his or her proposal,  recommend  the  making  of  an  order  under  section  46(1)  that contains provisions different from those requested by the public road controlling authority.

(5)       The application of subsection (1)(d)(i) is subject to section 109.

[16]     As can be seen from s 46(3) an order made under s 46(1) may, amongst other things, empower the public road controlling authority or toll operator to set tolls. “Public road controlling authority” was defined, at the time, as including Transit New Zealand.  This was subsequently altered to the New Zealand Transport Agency, which is the informant in this case.  It was established under s 93 of the LTMA with

its  objective  being  to  “undertake  its  functions  in  a  way  that  contributes  to  an

affordable, integrated, safe, responsive and sustainable Land Transport system.”

[17]     The  function  of  the  New  Zealand  Transport  Agency  in  managing  tolls, including the prosecution of offences under s 54 is far removed from the process by which a toll system is established under s 46.  It is not reasonably to be expected that the New Zealand Transport Agency would have under its control documents passing between the Minister and the Governor-General under s 46 prior to the establishment of the toll system that the Agency subsequently assumed management of.   The Agency has no part to play in the statutory process for the establishment of a toll system.   It would therefore be of limited assistance to the Court in resolving any challenge to the validity of the toll system.

[18]   Those with knowledge and control over the documents relevant to the establishment of the road tolling system would need to be before the Court in order for there to be any challenge to the road tolling system.  This would require evidence well in excess of any documents the informant could produce.   That fact points inevitably to the conclusion that Parliament could not have intended that such a challenge would be permitted in the context of a prosecution under s 54(1).

[19]     Albeit for different reasons, I agree with the Judge’s conclusion that there is no jurisdiction to consider the validity of the Order in Council in the context of a prosecution under s 54(1).  It follows that the disclosure that Dr Grueber seeks is not relevant to the prosecution and the Judge’s decision was correct.   The appeal is

therefore dismissed.

P Courtney J