Horowhenua District Council v Jamieson

[2012] NZHC 399

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2011-454-000043 [2012] NZHC 399

BETWEEN  HOROWHENUA DISTRICT COUNCIL Appellant

ANDALAN JACK JAMIESON Respondent

Hearing:         7 March 2012

Counsel:         A S A Hall for Appellant

Respondent in person

Judgment:      7 March 2012

Reasons:        12 March 2012

In  accordance  with  r  11.5  I  direct  the  Registrar  to  endorse  these  Reasons  for
Judgment with the delivery time of 11.00am on the 12th day of March 2012.

RESRVED JUDGMENT OF GENDALL J

[1]      The Horowhenua District Council appeals by way of case stated because it contests a decision of Justices of the Peace to refuse to award solicitor’s and other costs (apart from Court costs) when finding proven a minor offence, in an infringement notice proceeding against the respondent.

[2]      At the completion of the hearing I did not require the respondent to be heard on the questions stated in the case and indeed, being a lay person, he would have difficulty in doing so.  But I had reached the view that the appeal by way of case stated failed and was dismissed.  I indicated that reasons in writing would be given

and these now follow.

HOROWHENUA DISTRICT COUNCIL V JAMIESON HC PMN CRI-2011-454-000043 [7 March 2012]

[3]      The respondent had received an infringement notice alleging offence against the Transport Vehicle and Driver Registration and Licensing Act 1986 in that he used a motor vehicle which had affixed to it a licence not authorised under the Act.  The respondent disputed the issue of the infringement notice but after a defended hearing the Justices found the offence had occurred.  The outcome was that they ordered the respondent to pay the infringement fee of $200 and costs of $30.67.

[4]      Mr Hall, on behalf of the Horowhenua District Council, then applied for additional costs to be awarded  to the informant  and made detailed submissions (although he did not contend that full indemnity costs were required).  The Justices declined the application for costs and gave their reasons in writing on 14 September

2011, clearly having taken considerable time to consider the application and submissions.

[5]      Under s 107 of the Summary Proceedings Act 1957 an informant may appeal only by way of case stated if a determination is “erroneous on point of law”.  A case may be stated for the opinion of the High Court “on a question of law only”. Consideration by the High Court is restricted entirely to the facts and matters contained in the case signed by the Justices on 1 November 2011.   The case was clearly framed and drafted by solicitors for the appellant, which Mr Hall has confirmed to me.  The draft case was not forwarded to Mr Jamieson, the respondent, for his comments, considerations and approval, and this should have occurred.  Of course, he did not have the benefit of legal advice.  It is apparent the Justices signed the case solely on the basis as it was presented to them by counsel, and I suspect that if they had had legal advice or submissions countering that put forward on behalf of the informant, as well as a detailed understanding of the intricacies of what are “points of law” the Justices could well have declined to state a case in the form that was presented by counsel.

[6]      It is almost always the case that this Court will only consider matters as stated in the case and the questions then asked and will not turn to consideration of the actual decision made by the lower Court.   But because of those matters that I have mentioned it may be necessary to look at the actual decision of the Justices if it in fact differs from some matters as stated in the case.

[7]      The facts as stated in the case are as follows:

4.1      The relevant facts as accepted by the Court at the hearing were that:

4.1.1Mr  Jamieson  was  the  owner  of  a  modified  1937  Morris motor vehicle, registration ESQ376;

4.1.2On Thursday 30 December 2010 Mr Jamieson’s vehicle was parked on Oxford Street in Levin, and that he had parked there;

4.1.3Mr  Jamieson’s  vehicle  had  affixed  to  it  an  inappropriate licence label, namely an “A” licence;

4.1.4    That  at  the  commencement  of  the  allocated  hearing  at

10.00am on 8 July 2011, Mr Jamieson requested an adjournment because he said he had to undergo important

blood testing in Palmerston North. We were initially minded

to grant the application, but having heard the informant’s

solicitor in opposition, decided instead to grant an adjournment  through  to  the  afternoon  only,  to  allow  for Mr Jamieson to attend his blood tests;  and

4.1.5The Informant, its counsel and three witnesses were then required to wait four hours from the morning of the hearing date to the afternoon to accommodate Mr Jamieson, and that Mr Jamieson did not go to Palmerston North for the blood testing.

4.1.6The Informant’s solicitor raised Mr Jamieson’s conduct in his application for solicitor’s costs at the conclusion of the hearing.

[8]      The case as stated proceeds to record that the Justices determined that:

4.2.1Mr Jamieson did have affixed to his motor vehicle an inappropriate licence label;

4.2.2    We did not accept Mr Jamieson’s explanation that he thought

he had the correct licence label attached to his vehicle;

4.2.3That the various exemptions set out in the Transport (Vehicle and Driver Registration and Licensing) Regulations 1994 did not apply, and that Mr Jamieson was not using his vehicle in connection with vehicle inspection, servicing or repair;

4.2.4We   agreed   with   the   Informant   that   it   was   not   for Mr Jamieson to determine when he was able to drive his motor vehicle on a road.   Rather, his ability to operate a vehicle displaying an “A” licence was limited to the exemption set out in the applicable regulations;

4.2.5    We  order  that  Mr  Jamieson  pay  the  infringement  fee  of

$200, together with Court costs of $30.67;

...

4.2.7In concluding the application for costs, we asked ourselves whether Mr Jamieson was being reasonable in defending the issuing of the infringement notice or were his actions in disputing the matter frivolous or simply a means to try and get the Informant to rescind the infringement notice;

4.2.8We asked ourselves whether Mr Jamieson should have costs awarded against him just because he chose to defend the matter and then have the infringement upheld;

4.2.9We  asked  ourselves  whether it  was  appropriate to award costs against Mr Jamieson where the Informant is the local District Council, where there is usually no application for costs in traffic matters brought by the police;

4.2.10 Our view was that the real issue was whether we believe that Mr Jamieson was being fair and reasonable in his disputing of the infringement notice.   We noted that Mr Jamieson believed that he had followed appropriate laws and had reasonable grounds to defend the infringement notice;

4.2.11  We concluded that he [sic] Jamieson was reasonable in his defence on the infringement notice and that it was his right to request a hearing;

4.2.12 Further,  we  concluded  that  just  because  an  infringement notice was upheld, does not mean that costs should be awarded; and

4.2.13  We decline the application for solicitors costs.

[9]      As I have said, the questions contained in the case for the opinion of the Court  were  framed  by  counsel  for  the  appellant.    The  question  is  whether  the Justices’ “decision was erroneous in point of law”.  In particular:

4.3.1Whether we were right in law not to award costs by making an assessment that Mr Jamieson’s decision to defend the infringement notice was fair and reasonable.

4.3.2    Whether we were right in law to have regard to:

4.3.2.1whether police make application for solicitors costs in traffic matters;

4.3.2.2what  Mr  Jamieson  believed  in  terms  of  his  vehicle licence status.

4.3.3    Whether we were right in law not to have regard to:

4.3.3.1       the cost of regulator prosecutions to the rate-payer;

4.3.3.2       Mr Jamieson’s conduct during the hearing;

4.3.3.3the practice of the District Court in awarding solicitors costs in regulatory proceedings.

Appellant’s submissions

[10]     On behalf of the District Council, Mr Hall submitted that the Justices erred in law by acting on a wrong principle, failing to taking into account relevant matters and taking into account irrelevant matters and erred by assessing the respondent’s decision to defend the infringement notice was fair and reasonable.  He argues that it is an irrelevant consideration because a subjective view could be put forth by every defendant so as to result in costs never being awarded.   He said the respondent’s view of the merits of the case was not something the Justices should have considered when assessing what was just and reasonable.

[11]     Mr  Hall  further  submitted  that  the  Justices  took  into  account  irrelevant matters, namely whether the police themselves apply for costs in traffic matters and the respondent’s own belief as to the licence status of his vehicle.

[12]     Lastly, Mr Hall submitted that ratepayers should not bear the costs involved in what he says are “regulatory prosecutions”.  He said that although a respondent had the right to request a hearing an appellant had no choice but to incur the costs of preparing for and prosecuting it and that the costs often are, and were in this case, substantial.   Mr Hall argued that the Justices erred by failing to consider the arguments advanced by him that that the Court had to recognise that by refusing to award solicitor’s costs would, as counsel put it, “operate as a perverse incentive for defendants to pursue meritless defences, thereby clogging a system intended to operate efficiently”.

[13]   Further, counsel argues that the respondent’s actions unnecessarily and unreasonably delayed the hearing resulting in further cost and contends the Justices did not assess the respondent’s conduct objectively, so fell into error.  Lastly, counsel submitted that the practice in the District Court is that regulatory prosecutions on behalf  of  local  authorities,  are successful  invariably relate in  solicitors  costs  of

between $150 – $200 being awarded and that consistency with other courts is something the Justices failed to consider.

[14]     Underpinning many of Mr Hall’s submissions appears to be the proposition that he advanced that “general policy considerations” were in issue;   ratepayers should not have to meet the costs of a local body where a prosecution is successfully brought by it;  and because costs he said are not generally awarded by Justices or Judges for minor offence prosecutions in Levin, that policy (if such be it) needed to be rectified.  Counsel said it was for that reason that he made detailed submissions to the Justices in the District Court in support of the application for costs and that he requested the Justices provide reasons in writing, which they did.

[15]     I make it clear that the appeal by way of case stated on points of law is not the type of proceeding that lends itself for decisions or comments on issues of policy. Nor is it the venue for challenges to the exercise of discretions or decisions based upon assessment of individual facts in particular cases.

Discussion

[16] An award of costs in favour of the prosecution may be made under s 4 of the Costs in Criminal Cases Act 1967. That provides in subs (1) that the Court may order a defendant to pay such sum as it thinks just and reasonable towards the cost of the prosecution. The discretion is unlimited and unfettered and because of this considerations which may be relevant in any particular case will infinitely vary. Whilst “all relevant circumstances” is something a Court is to have regard to when awarding costs to a successful defendant (under s 5) and that phrase is not used in s 4 as relating to costs of the prosecutor it is axiomatic that consideration of the circumstances that are relevant is required and this underlies the width of the discretion given to the Court. The Court has been given a complete discretion and in any particular case some or all of the appropriate matters may be rejected, or given such weight as the case suggests is suitable.

[17]     There is no presumption for or against the granting of costs to the prosecution and just as an equitable is not of itself sufficient reason for an order against the

prosecution and neither is the fact that the proceedings were properly brought and continued is a ground for refusing costs, so too the fact that the prosecution was brought and pursued cannot without more result in solicitors costs being awarded. There has been repeated emphasis on the width of the power to award costs against the prosecution, warning against the narrowing of that discretion and as Hardie Boyes J said in R v Margaritis “all this really means [is] that the Court is to do what

it thinks right in the particular case”.[1]

[1] R v Margaritis HC Christchurch T66/88, 14 July 1989.

[18]     Turning to the questions as posed in paragraph 4 of the case.   It is well established that it is unsatisfactory to ask in a general way whether a decision was erroneous in point of law in an appeal by way of case stated.   To that extent the question contained in paragraph 4.3.1 does not seem appropriate.  In any event once the respondent’s decision as to defend was found to be fair and reasonable as the Justices did, then it is not possible to say that a point of law arises that they erred in not  awarding  costs  to  the  prosecution  and  the  question  or  issue  as  framed  in paragraph 4.3.1 is one of fact and not one of law.

[19]     Turning then to the questions posed in paragraph 4.3.2.  These questions ask whether the Justices were right in law to have regard to the two considerations that are mentioned.  Those are not questions of law but rather questions of fact.  They were matters which the Justices were entitled to place on the scales in the balancing exercise.  They were not bound to do so but they were not matters which, as a matter of law they were bound to ignore.   What weight they gave to those factors was entirely for them in the exercise of their overall reasoning process.  I note, further, that the actual decision of the Justices simply records that in police traffic matters there is “usually no mention of further costs” and the Justices were entitled to ask themselves as they say they did, whether the fact that an informant was a local District Council required the approach to issues of costs to be treated differently. They did not say that costs should never be awarded.

[20]     The Justices’ finding of fact as to what the respondent believed in terms of his

vehicle licence status may well have been an assessment of his subjective belief but it was nevertheless inextricably linked to the issue of his reasonableness in defending

the infringement notice.  The Justices were entitled as a matter of fact to place that consideration on the scales.

[21]     It could not possible be said there was error of law as the question was framed in paragraph 4.3.2.

[22]     Turning then to what are said to be questions of law proposed in paragraph

4.3.3, namely the proposition that the Justices erred in law by not having regard to the cost to ratepayers, Mr Jamieson’s conduct during the hearing, and the practice of the District Court in awarding solicitor’s costs in regulatory proceedings.  I am not satisfied on a true reading of the Justices’ costs decision that the three matters in paragraph 4.3.3 are properly posed as points of law.  Indeed, a reading of their costs decision suggests otherwise and in the case itself the Justices say (at paragraphs

4.2.7, 4.2.8 and 4.2.9) that they “asked ourselves” a number of questions which were clearly relevant.  That does not suggest that the Justices failed to have regard to the matters mentioned.  To “have regard to” simply means to give consideration to and the correct position is that the Justices had those considerations and submissions before them in the form of the detailed arguments of counsel and the fact that they may not have accorded to them the extent of weight that the informant wished is a matter of fact and discretion and cannot be elevated into an issue or question of law.

[23]     The Justices in fact must have taken into account the respondent’s conduct during the hearing because they found he was reasonable in his defence and his request for a hearing and although Mr Hall argued that because an adjournment was granted from 10.00am until 2.00pm at Mr Jamieson’s request, such was an unreasonable request and the Justices should have taken that into account as a factor why costs should have been awarded.   But that could not as a matter of law have been required and declining to do so does not give rise to any point of law.

[24]     Given the matters that were thoroughly canvassed in Mr Hall’s submissions to the Justices they would well have been aware of costs that fall upon District Councils in bringing prosecutions and that in some cases costs are awarded but not always.  It can never be a matter of law that costs should always be awarded or, for that matter, they should always be declined.   The end result is what is just and

reasonable in the particular case and that is a question of fact, unless it should be that the decision is so perverse as to be made beyond the bounds of reason.  The Justices did not make definitive findings one way or the other as to what should occur if an informant happens to be a District Council.   But rather they concentrated, as they were required to do, on the real issue, whether the overall justice of the case and the respondent’s actions in disputing the infringement notice was fair and reasonable. There is no presumption one way or the other on the issue of costs and any challenge to the exercise of the Justices’ discretion requires very much more than what is advanced in this case stated.   None of the questions contain points of law to be determined by way of case stated and involve in truth challenges to matters of fact and discretion, clearly vested in the Justices, which are dressed up as questions of law.

[25]     The appellant in my view misunderstands the proper use of the case stated appeal mechanism.  It is seeking in truth to pursue what is a general appeal dressing up questions of fact and discretion in the guise of points of law.  That appears to be something that counsel for the appellant had in mind at an early stage in his submissions to the Justices when he asked them to:

If you are not prepared to award solicitors costs that you do record reasons for your decision just to preserve the Informant’s position in that regard, potentially on review.

[26]     I draw the inference there  existed  an  intention to  appeal  if  the Justices’ exercise of the discretion went against the informant which of course is what happened.  But that is not permissible use of the case stated procedure unless there is a point of law requiring the answer of the High Court and in this particular case such does  not  exist.    If  it  be  that  the  appellant  wishes  those  exercising  summary jurisdiction in the Levin District Court to be more generous in awards of costs to informants then that is a policy matter either for the legislature or by way of declaratory judgment or judicial review proceedings where the appropriate and individual case might justify that.

General comment

[27]     Mr  Hall  says  that  a  decision  not  to  award  costs  would  lead  to  many defendants served with infringement notices seeking to defend and having a “free ride” with an unmeritorious defence at the expense of local authority.  But the actual position is that the Justices did not say that costs should never be awarded, but rather that this was a case where, on their factual assessment, such was not appropriate. And the Justices were alive to the converse situation, namely that if it was always to be  the  case  that  solicitor’s  costs  were  to  be  awarded  against  an  unsuccessful defendant who reasonably challenges an infringement notice, then there would be an improper deterrence to citizens electing to pursue their right to defend proceedings. The short point is, there is no presumption one way or the other and the Justices’ decision in this case has no precedent value and was simply an example of them exercising their discretion properly as they were entitled to do.

Conclusion

[28]     This appeal was doomed to fail as it was simply a challenge to the proper exercise of the Justices’ discretion and no basis exists to conclude the Justices’ decision was “erroneous in point of law”.  Accordingly, the answer to the questions posed in each of paragraphs 4.3.1 and 4.3.2 is “Yes”.   I do no regard it proper to answer the question posed in paragraph 4.3.3 because I do not accept the Justices ignored or did not give consideration to those factors.   But even it be that they declined to do so they did not err in law.

[29]     The appeal is without merit and is dismissed.  If the respondent had had to engage counsel to appear on his half and argue this appeal he would have been entitled to an award of costs against the District Council.  But as he is unrepresented the law is that no order for costs can be made in his favour.

J W Gendall J

Solicitors:

Fitzherbert Rowe, Lawyers, Palmerston North for Appellant