JPN Limited v Rotorua District Council HC Rotorua CRI-2010-463-38

[2011] NZHC 137

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2010-463-38

JPN LIMITED

Appellant

v

ROTORUA DISTRICT COUNCIL

Respondent

Hearing:         8 October 2010

Appearances: R M Wilson on behalf of the Appellant

F Wood for the Respondent

Judgment:      7 February 2011 10:00:00

JUDGEMENT OF WOODHOUSE J

Thisjudgment was delivered by me on 7 February 2011 at 10:00 a.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors / Parties: JPN Limited, Rotorua

Mr F Wood, Davys Burton, Solicitors, Rotorua

Copy to:

The Chief Executive, Land Transport Authority, Wellington

JPN LIMITED V ROTORUA DISTRICT COUNCIL HC ROT CRI-2010-463-38 7 February 2011

[1]      Following a defended hearing in the District Court at Rotorua the appellant was convicted for three motor vehicle offences as follows:

(a)      On 27 April 2009: contravention of ss 6 and 34(1)(b) of the Land Transport Act 1998 by operating a vehicle on the road when it was not displaying current evidence of vehicle inspection.

(b)On 29 July 2009: contravention of ss 5(1)(b) and 5(2) of the Transport (Vehicle and Driver Registration and Licensing) Act 1986 by using a motor  vehicle  on  a  road  when  the  appropriate  license  was  not displayed in a correct manner.

(c)      On 29 July 2009: contravention of s 17(e) of the Transport (Vehicle and Driver Registration and Licensing) Act 1986 by using a vehicle which had a registration plate affixed to it which was not authorised under that Act and was likely to be mistaken for an authorised registration plate.

[2]      The  appellant,  represented  by  its  managing  director,  Mr  R  M  Wilson, appealed against the convictions.  At a conference before Priestley J on 12 August

2010 it was agreed that there were two issues on appeal, as follows:

(a)      The  first  issue  is  whether  the  respondent’s  traffic  wardens  had jurisdiction to issue the infringement notices when trade plates were attached to the vehicles.  The requirements to display current evidence of vehicle inspection and an appropriate licence do not apply when a trade plate is attached to the vehicle and other conditions relating to trade plates are complied with.  In this case, on both occasions, there were trade plates on the cars.

(b)The  second  issue  is  whether  the  appellant  was  prejudiced  in  its defence by late disclosure by the respondent Council, as informant in the District Court.

[3]      Section 30 of the Transport (Vehicle and Driver Registration and Licensing) Act 1986 sets out the requirements for a person who wishes to apply for a trade plate.  Section 35 provides:

Any person to whom s30 of this Act applies may use on any road the type of motor vehicle in respect of which that person is entitled to use trade plates, notwithstanding that the motor vehicle is not registered under this part of this Act and that it does not have affixed thereto registration plates or a current license issued for that motor vehicle if, at all times while the motor vehicle is in use, there are affixed to it in the manner prescribed by the Ministry by notice in the gazette trade plates for the motor vehicle of the class to which that motor vehicle belongs and a current trade license in respect of those plates issued to that person under s34 of this Act.

[4]      The  Land  Transport  Rule  –  Vehicle  Standards  Compliance  2002  –  Rule

35001/1, deals with the use of trade plates, amongst other things.  There has to be a determination that the vehicle is safe for conditional operation (s 5.3(1)) and the operator must complete an annex A form and sign an annex B conditional permit in accordance with s 9 (s 5.5(1)).

[5]      Section 9.4(1) of the Rule specifies the form of the conditional permit, and s 10.2(3) provides that a person may operate a vehicle if (1) the conditional permit has been issued, (2) the permit is carried in the vehicle, and (3) the vehicle is being operated in accordance with ss 10.3 and 10.4 (or in accordance with s 10.5, which has no application).

[6]      Section 10.3 requires that (1) a valid trade plate be fitted to the vehicle, (2) the vehicle is to be operated “solely for one or more of the purposes in 10.4”, and (3) the distance travelled is not more than 50 kilometres from the specified location.

[7]      Section 10.4 of the Rule prescribes the purposes for which a vehicle may be operated in this way.   They are very limited:  the demonstration of the vehicle; delivery of the vehicle; repair or modification of the vehicle; road-testing in connection with the inspection and certification of the vehicle; evaluation or testing of the vehicle.

[8]      On 27 April 2009 a car owned by the appellant was parked in a street in Rotorua.  It was seen by a traffic warden employed by the respondent.  The driver of the car was not present.   A trade plate was attached to the car but there was no evidence of compliance with any other conditions relating to the use of trade plates. There was no current warrant of fitness.   An infringement notice was issued: see [1](a).

[9]      On 29 July 2009 another car owned by the appellant was parked in a street in Rotorua.  It was seen by another traffic warden employed by the respondent.  The driver was not present.

[10]     Mr Wilson said that there was a trade plate attached to the rear of this car. This was not seen by the traffic warden.  The Justices of the Peace who heard the matter in the District Court accepted Mr Wilson’s evidence in this regard.

[11] The appropriate licence was not displayed. This led to the issuing of an infringement notice for the offence noted at [1](b) above.

[12]     On the front of the car there was a plate or sticker with the number and letters “4BMWS”.  The traffic warden took this to be the registration plate and recorded it as such when issuing the infringement notice for the failure to display the licence. An enquiry by an officer of the respondent Council disclosed that there was no registered number plate “4BMWS”.  The further infringement notice for an offence recorded at [1](c) was then issued.

Trade plates and the jurisdiction of traffic wardens

[13]     Mr  Wilson  conceded  that  the  parking  wardens  of  the  respondent  do,  in general, have authority to enforce various vehicle offences, including those alleged in this case against the appellant.   This was an appropriate concession: see the Transport Act 1962 s 68BA and Schedule 2A.

[14]     Mr Wilson’s argument was that traffic wardens do not have such authority when a trade plate is displayed.  The starting point of Mr Wilson’s argument is the statutory requirement that a person wishing to operate a vehicle with trade plates must carry the permit in the vehicle: see Land Transport Rule 10.2(3) and [5] above. Mr Wilson submitted that only a police officer or a compliance officer of the New Zealand Transport Agency is entitled to require production of the permit.  Mr Wilson did not refer to any statutory provision to that effect and Mr Wood, counsel for the respondent, did not refer to any statutory authority.  Mr Wilson relied on a statement in a NZ Transport Agency website explaining the requirements for trade plates for uncertified or unregistered vehicles.  Under the heading “Conditional Permits” there is the following statement (omitting emphasis and large font used in part in the website):

You need to complete a conditional permit before driving vehicles not certified for use on New Zealand roads.  This is a self-completed step – you fill the permit out, sign it and date it yourself and then keep it with you to hand over if you’re stopped by the NZ Police or one of our Compliance Officers.

[15]     Mr Wilson also submitted that there is no statutory provision giving parking wardens authority to require production of a conditional permit.

[16]     If the driver of the appellant’s car had been in or with the car on either occasion, and if the driver had declined to produce a conditional permit (assuming there was one) in reliance on the statement in the Land Transport Safety Authority website, a question as to whether the convictions should stand may have arisen.  The question would not depend, necessarily, on the provisions of the Transport Acts and Rules, but on a question of fairness: in essence, is the statement in the website misleading.

[17]     It is unnecessary to express any concluded view on the meaning and effect of the website statement and whether it does give rise to any question of unfairness, or at least ambiguity.[1]   This is because, on the facts of this case, issues of this sort do

[1] It deals only with production of the conditional permit after a vehicle has been stopped by a police officer or compliance officer. Circumstances such as those arising in this case are simply not addressed.

not arise.  On both occasions, as earlier recorded, the car was already parked in a city

street and there was no driver in attendance.  A question of the authority of a traffic warden to require production of a permit simply did not arise on the facts.  On both occasions there was a car parked in a street which, on the basis of all of the information then available to the traffic warden (and including the plates that had not been seen on the second occasion), did not comply with the statutory provisions as specified in the infringement notices.  The presence of trade plates did not alter the facts alleged in the infringement notices.   Had Mr Wilson produced proof of compliance with all of the requirements for use of trade plates, the offences recorded at [1](a) and [1](b) would not have occurred.   But all of the requirements, or conditions, were not proved.   Furthermore, the reasonable inference to be drawn from the fact that, on both occasions, the car was parked unattended in the street, is that the car on each occasion was not being used for one of the very limited purposes specified in s 10.4 of the Rule: see [7] above.

[18]     The question of jurisdiction raised by the appellant has no bearing on the third offence, an unauthorised registration plate.

[19]     The appeal on this ground is dismissed.

Disclosure by the respondent as informant in the District Court

[20]     Mr Wilson said that he had sought disclosure of three matters: the names of the witnesses to be called for the Council, copies of their briefs of evidence and the evidence that the Council relied on in support of the charges.  Mr Wilson had sought this disclosure in letters to the Council and at a preliminary Court hearing on 20

November 2009.   He said that he received the briefs of evidence at Court on 22

January 2010, approximately 10 minutes before the defended hearing was due to start.  Mr Wilson applied for an adjournment because of the late disclosure and this was granted.  The defended hearing did not proceed until 16 April 2010.  On that date the appellant company was represented by counsel.   The briefs of evidence which had been provided on 22 January also, of course, contained the names of the Council’s witnesses and the evidence relied on by the Council.

[21]     I commented to Mr Wilson, in the course of his submissions, that, whether or not there had been initial delay by the Council, in the end his company had got full disclosure and had had plenty of time to deal with it. Mr Wilson did not disagree.

[22]     In these circumstances there is nothing in the disclosure ground of appeal.

Result

[23]     The appeal is dismissed.

[24]     If there is any question of costs then a memorandum for the respondent should be filed with a response for the appellant two weeks after receipt of a copy of the respondent’s memorandum.

Addendum

[25]     The statement in the website of the Land Transport Safety Authority, referred to at [14], [16] and [17] of this judgment, may require review.   In addition, or alternatively, consideration might be given to a statutory amendment to deal with the possibility  of  conflict  between  the  express  powers  of  traffic  wardens  and  the

requirements relating to operation of a vehicle with trade plates.

Peter Woodhouse J