Moses v Auckland City Council HC Auckland CRI-2010-404-000306

[2010] NZHC 2443

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-000306

MALCOLM LEWIS MOSES

Appellant

v

AUCKLAND CITY COUNCIL

Respondent

Hearing:         7 December 2010

Appearances: Appellant Self-Represented

H Hargraves for the Respondent

Judgment:      21 December 2010

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 21 December 2010 at 4.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:   M L Moses (Appellant) 8/116 Line Road Point England Auckland 1072

Auckland Council Private Bag 92300 Auckland 1142 for the Respondent

MOSES V AUCKLAND CITY COUNCIL HC AK CRI-2010-404-000306  21 December 2010

[1]      The appellant, Mr Moses, has filed a notice of general appeal pursuant to s 116 of the Summary Proceedings Act 1957 against a finding of the District Court that  he  is  guilty  of  contravening  a  parking  infringement  notice  issued  by  the Auckland City Council.  The appeal appears to be against conviction and sentence.

[2]      Mr  Moses  has  been  a  regular  visitor  to  the  Auckland  Museum  for  a significant time, and is also a life member of the Auckland Museum Institute.  This body in the past governed the Museum, and now provides governance in partnership with the Electoral College.   The infringement occurred after closing hours of the Museum when Mr Moses was attending a late function.   He was unaware that parking restrictions operate after the Museum closing hours.  In fact, the regulatory regime for parking at the Auckland Museum prohibits parking between the hours of

10.00 pm to 6.00 am Thursday to Sunday, except for authorised vehicles.   It is common  ground  that  Mr  Moses’  vehicle  was  not  an  authorised  vehicle.    A City Council  parking  officer  found  the  vehicle  parked  in  the  restricted  zone  at

10.14 pm.  Accordingly, an infringement notice was issued.

[3]      There has been some debate about the extent to which Mr Moses drew the Auckland City Council’s attention to his particular circumstances.   It might have been thought that had the Council been provided with a full explanation earlier, it may have decided to waive the infringement notice.  Mr Moses is clearly not the type of driver at whom the parking restriction is aimed.  It is said it was put in place to stop boy racers and other undesirable drivers from frequenting the area late at night, whereas Mr Moses is someone who had a legitimate interest in being at the Museum on the night of the parking infringement.  Mr Moses asserts that after he received the infringement notice, a system was set up whereby the Museum would advise the Auckland City Council of its meetings and, whilst the meetings were in operation, the vehicles of those attending the meetings would not receive infringement notices. Counsel for the respondent does not accept that this procedure has been put in place.

[4]      As  matters  have  turned  out,  the  infringement  process  was  enforced. Mr Moses elected to defend himself in the District Court.  In that Court he was found to  have  committed  an  offence  by  parking  contrary  to  a  notice,  traffic  sign,  or marking.  The notice of hearing under which the infringement offence was laid cites

s 41A(2) of the Transport Act 1962, and cl 6.4 of the Land Transport (Road User) Rule 2004 as the relevant enactments creating the offence.   The infringement fees and penalties for infringing the Land Transport (Road User) Rule 2004 are provided in reg 4(1) of the Land Transport (Offences and Penalties) Regulations 1999 and schedule 1 to those regulations.

[5]     Section 42A of the Transport Act provides that persons who commit infringement offences involving stationary vehicles may be proceeded against summarily.  The summary procedure for infringement offences is set out in s 21 of the Summary Proceedings Act 1957.

[6]      Under s 21(1)(b) an infringement offence may be commenced with the filing of a notice of hearing setting out the alleged infringement offence.   Under s 21(6) a person who has received an infringement offence notice may request a hearing.  In this  case,  the  evidence records  that  Mr  Moses  requested  a  hearing in  an  email communicaiton he had with the respondent.  Under s 21(8) where a person requests a hearing, the informant is required to file in court and serve on the defendant a notice of hearing in the prescribed form.  Such a notice was filed and served in this case.

[7]      Section 21(7) provides that a person giving notice requesting a hearing in respect of an infringement offence may, if the person thinks fit, in that notice admit liability in  respect  of  the  offence,  and  make  any  submissions  as  to  penalty  or otherwise that the defendant would wish to be considered by a court hearing proceedings in respect of that offence.  Under s 21(9), the Act provides that where a defendant is found guilty of, or pleads guilty to, an infringement offence for which an infringement notice has been issued, the court shall order the defendant to pay costs of the prescribed amount, in addition to the fine (if any) and other costs, if any, ordered by the court.

[8]      Section 78A of the Summary Proceedings Act provides that for those cases where an infringement offence is dealt with in a court hearing, either following a finding of guilt or a plea of guilty, the court shall not convict the defendant but may order him or her to pay such fine and costs and may make such other orders as the court would be authorised to make following a conviction.

[9]      The presence of s 21(7) and s 21(9) shows that, in general, the court hearing the infringement offence has discretion when it comes to the imposition of a penalty. There is little point in s 21(7) providing a person subject to an infringement notice the opportunity of making submissions on penalty, if the District Court has no discretion as to the penalty, if any, that is imposed.  Similarly, it is hard to see why s 21(9) would refer to the imposition of a penalty in permissive terms if there was no discretion when it came to the imposition of a penalty.  The permissive character of s 21(7) and s 21(9) is reiterated by s 78A, which precludes the entry of a conviction for an infringment offence, but permits the imposition of a fine and other orders.

[10]     However, where the enactment specifying the infringment offences stipulates a mandatory penalty, the discretion  conferred in s 21(7), s 21(9)  and  s 78A is overriden: see Interfreight Ltd v Police [1997] 3 NZLR 688 (CA). The offence in that case concerned the overloading of a motor vehicle. Section 68B(2) of the Transport Act created the process for dealing with the offence and the penalty. It provided:

(2)Every person commits an offence who acts in contravention of subsection  (1)  of  this  section,  [by  overloading  a  heavy  motor vehicle] and –

(a)Proceedings in respect of the offence shall be taken by the infringement offence procedure specified in section 42A of this Act:

(b)       The  penalty  for  the   offence  shall  be  the  appropriate overloading infringement fee or the total of those fees calculated in accordance with part 2 of the second schedule of this Act.

[11]     Because  there  was  conflicting  High  Court  authority  on  the  question  of whether or not the penalty prescribed in paragraph (b) was mandatory, the matter went as far as the Court of Appeal.  The Court of Appeal considered that the plain terms of subs (2)(b) stated what the penalty for an overloading offence “shall be”. The Court of Appeal said that prima facie the subsection laid down a mandatory penalty.

[12]     Regarding s 21 of the Summary Proceedings Act and subss (7), (8) and (9), which are framed in permissive terms when it comes to the imposition of a penalty for an infringement offence, the Court of Appeal said:

… we make the point that section 21, like section 42A, is a general provision whose terms must yield to provisions dealing with specific infringement offences.  Subsection (7) of section 21 provides:

(a)that a person giving a notice requesting a hearing may in that notice admit liability in respect of the offence; and

(b)may make any submissions as to penalty or otherwise that the person concerned wishes the Court to consider.

Mr Hooker’s point was that in respect of overloading offences, if the penalty is mandatory, there will be no point in making any submissions as to penalty. That is so, but this is a classic example of a general provision having to yield to some provision directed to a specific instance.

[13]     Similarly, in response to Mr Hooker’s argument that the reference in s 21(9) to the imposition of a fine, if any, suggested the fine was permissive, the Court of Appeal’s  response  was  that  if  the  penalty  was  mandatory  in  the  case  of  an overloading offence, there would have to be a fine, and the words “if any” in s 21(9) were inappropriate.  This was said to be “a case of a general provision yielding to a specific provision”.  In Interfreight the Court of Appeal concluded that the penalty provided  in  s  62B(2)  for  overloading  a  heavy  motor  vehicle  was  a  mandatory penalty.

[14]     Thus, the first question to consider is whether or not the infringement offence which Mr Moses committed is one which has a mandatory penalty.

[15]     I have been unable to find anything which suggests to me that there is a mandatory penalty for offending against cl 6.4 of the Land Transport (Road User) Rule 2004.  Nor did the respondent draw anything to that effect to my attention.

[16]     There  is  authority  for  the  view  that  the  infringement  fee  stipulated  in schedule 1 of the Land Transport (Offences and Penalties) Regulations can operate as a mandatory penalty: see  Wellington City  Council v Phillips HC  Wellington AP278/02, 10 December 2002.  In this case, France J was considering the offence of operating  a  vehicle  without  displaying  current  evidence  of  vehicle  inspection.

France J found that the infringement fee was a mandatory penalty and thus, the District Court had no jurisdiction to reduce the fee payable.  This conclusion is based on s 42A (8A) of the Transport Act which provides that the fee “is” the fee specified in schedule 1.  France J found that those words had the same effect as the wording considered in Interfreight.  At [19], she said:

I find that the wording used in s 42A(8A) is to the same effect as that considered in Interfreight.  The fee “is” the fee specified in the Schedule.  I do not consider anything turns on the absence of the word “penalty” because the “fee” is still a penalty.   The policy reasons underlying the decision in Interfreight, that is, that a person should not be better off simply by seeking a hearing are equally applicable.   Any other interpretation would be inconsistent with the objective of the legislation.  Accordingly, the Justices had no jurisdiction to reduce the fee payable.

[17]     However, in Nelson City Council v Howard [2004] NZAR 689, McKenzie J, in an appeal involving the same offence, took a different view. After considering the decision of France J in Wellington City Council, McKenzie J went on to find that the infringement fee was not a mandatory penalty.  He recognised that whilst it might be a penalty as that word was commonly used, it was not a penalty in the way in which a penalty had been provided in s 69B (the relevant provision in Interfreight).   At [33], McKenzie J said:

As I have indicated, I do not think that the issue can be resolved simply by determining whether an infringement fee under s 42A(8)(a), or s 141(1) is a penalty.   An infringement fee is undoubtedly a sanction, and therefore a penalty on the common usage of that term.  It is not however the penalty for the offence in the technical sense, in the same way as the penalty provided for in s 69B.

Consequently, he found that the infringement fee need not be mandatorily applied.

[18]     To like effect is the decision of Randerson J in Carr v Police HC Auckland A.202/99, 6 April 2000.  Randerson J found that there was nothing in the Road User Charge Act 1998 or the Transport Act to exclude the general provisions in s 21 of the Summary Proceedings Act which enabled a District Court hearing an infringement offence to determine the appropriate penalty to be imposed.

[19]     For the same reasons as those given by Mckenzie J  and Randerson J,  I

consider   that   an   infringement   fee   cannot   constitute   a   mandatory   penalty.

Furthermore, it is apparent from the Court of Appeal’s judgment in Interfreight that an infringement fee cannot constitute a mandatory penalty.   At 689 the Court of Appeal drew a distinction between the terms “infringement fee” and “penalty”:

In its plain terms [s 69B(2)(b)] states what the penalty for an overloading offence shall be.  Prima facie it lays down a mandatory penalty.  The use of the word “penalty” is of moment in that the concept of a penalty suggests that the draftsman was looking beyond the infringement offence procedure in respect of which “infringement fee” is the terminolgy used rather than “penalty”.  edited

[20]     Later at 690 the Court of Appeal again referred to the terms “infringement fee” and “penalty” in a way which shows it was distinguishing between each term; the distinction being that  an  infringement  fee was  confined  to  the infringement offence  regime  whereas  a  penalty  (in  the  form  of  a  fine)  applied  to  the  later procedure once the prosecution of the offence was proceeded with summarily:

It is instructive to note when considering s 42A [of the Transport Act 1962] that subs (8A), which deals with stationary and moving vehicle offences, refers to the infringement fee payable in respect of such an offence and not to the penalty so payable.  This is the distinction in terminology referred to earlier, and supports the view that once you leave the infringement offence regime the sanction is regarded as a penalty (in the form of a fine) rather than a fee.

Thus, once the prosecution process has moved into the summary procedure, you cannot look backwards to the infringement offence regime for the purpose of finding a penalty, let alone a mandatory one.

[21]     It is noteworthy that in Interfreight the mandatory penalty was contained in primary legislation.  The importance of this is that, as was recognised in Interfreight, specific legislation will trump general legislation to the contrary; this is expressed in the maxim generalia specialibus non derogant.   However, the principle does not apply when the competing enactments are not of the same status.  There is another general principle of statutory interpretation which is that delegated legislation cannot override  an   Act  of  Parliament:  see  Francis  Bennion  Bennion  on   Statutory

Interpretation  (5th    ed,  Lexis  Nexis,  London  2008.)     Consequently,  unless  a

mandatory penalty can be found in the primary legislation (the Transport Act), there is nothing in the subordinate enactments relating to the imposition of a penalty which can trump the permissive nature of s 21(7) and s 21(9) in this respect.  This principle

is confirmed by the comments of the Court of Appeal in Interfreight at 692: “...it is difficult to see how subordinate legislation could have altered the plain terms of the statute”.

[22]     I consider there are sound policy reasons for the application of s 21(7) and s 21(9) to infringement offences like the present.   Under the infringement offence regime, Parliament has  specifically provided a  way for persons  with reasonable excuses for their offending to avoid the enforcement process.  Section 139(4)(b)(i) of the Land Transport Act 1998 permits someone who has received an infringement offence notice to write to the enforcement authority for the purpose of raising a matter concerning the circumstances of the offence for consideration by the enforcement  authority.    An  enforcement  authority  which  receives  a  reasonable excuse for the offence may choose to waive the infringement.   This is in keeping with the general discretion enforcement authorities have regarding whether or not to prosecute   offending.      The   availablity   of   s   21(7)   and   s   21(9)   of   the Summary Proceedings Act provides an effective backstop should the circumstance ever eventuate where an enforcement authority chooses to act in an arbitrary and capricious manner by adopting a policy which results in it refusing to consider such excuses, irrespective of their individual merit.  Without the authority to determine an appropriate penalty, if any, under s 21 the District Court would be unable to correct arbitrary and capricious conduct on the part of an enforcement authority when it came to the authority’s consideration of excuses provided to it by offenders/defendants under s 139(4)(i) of the Land Transport Act.

[23]     In the present case, once Mr Moses requested  a hearing, the proceeding against Mr Moses left the infringement regime and moved into the summary process set out in s 21 of the Summary Proceedings Act.  Consequently, an infringement fee could no longer be imposed on him.   This leaves the question of the available penalties.

[24]     I have also been unable to find anything which suggests to me that there is a minimum penalty for offending against cl 6.4 of the Land Transport (Road User) Rule 2004.  This is relevant for the application of s 106 of the Sentencing Act 2002. When I queried with the respondent whether a discharge without conviction was

available,  I was advised that it was.   This is consistent with there not being a minimum penalty for this offending.

[25]     In the course of looking for mandatory or minimum penalties for offending against cl 6.4 of the Land Transport (Road User) Rule 2004, I have been unable to find  any  enactment  which  sets  out  a  maximum  penalty  for  this  offending. Schedule 1 of the Land Transport (Offences and Penalties) Regulations 1999 does not stipulate a maximum penalty for individuals who offend against cl 6.4 of the Land Transport (Road User) Rule 2004, whereas the schedule stipulates a maximum penalty of $1,000 for registered companies which offend against this provision.  The relevant part of Schedule 1 also stipulates an infringement fee for both individuals and  registered  companies  who  offend  against  cl  6.4.    This  is  to  be  found  in Schedule 1B of the Regulations and is the sum of $40.   For the reasons I have already given, I do not think that the infringement fee stipulated in Schedule 1 or Schedule 1B can operate as a maximum penalty.  The absence of any reference in Schedule 1 of the Land Transport (Offences and Penalties) Regulations 1999 to a maximum penalty for individuals who offend against cl 6.4 of the Land Transport (Road User) Rule 2004 leaves me unclear as to what the maximum penalty for this offending might be.   However, I do not see this as having any impact on what I propose to do in this appeal.

[26]     In this case, the District Court found Mr Moses to be liable on the ground he was infringing the parking regulations that applied at the time.  The decision went on to say at [6]: “So we cannot see really any reason why we can change the infringement.  We find the infringement stands and you need to pay the fine”.  No regard was had to the explanation Mr Moses had given through his evidence before the Court and what impact it might have on any decision to impose a penalty.  Thus, there was no consideration of whether or not a penalty should be imposed on him. Nothing was said about what the scale of the fine should be, nor was the fine quantified in the written reasons of the District Court.  This suggests to me that the District Court treated the imposition of a fine as an automatic consequence, with the quantum of the fine determined by the stipulated infringement fee.

[27]     However, to see matters in this way is to overlook the discretion in s 21(7) and s 21(9) of the Summary Proceedings Act which enables a Court to determine whether or not a fine will be imposed, where no mandatory penalty for an offence is stipulated.  It also overlooks the discretionary nature of s 78A.

[28]     It follows that in failing to turn its mind to the appropriate fine, if any, the District Court has failed to consider how it should exercise its discretion under s 21(9).   This is an error of law.   I consider that since the District Court did not consider the question of whether it was appropriate to impose a penalty in this case, it is open to this Court to do so.

[29]     The decision of the District Court reveals another error.  The decision does not refer to the quantum of the fine or to an award of any costs.  On the infringement notice, the District Court recorded a fine of $40, and costs of $130.  I consider that the District Court should have set out in its decision the amount of any fine imposed and the basis of any costs award.   Unless some limited reason in support of the penalty and costs is provided, this Court in exercising its supervisory jurisidiction has nothing to inform it as to why the District Court has reached the determination which is the subject of appeal: see Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA).

[30]     Mr Moses has been obliged to come to this Court to pursue his complaint that the Auckland City Council has acted unreasonably in seeking to enforce the infringement notice that was issued against him.  He is not someone who has chosen to blatantly ignore parking regulations.  He is someone who had a lawful and proper interest in being at the Museum at the time that he was.  It was a matter of mischance that the function he attended ran beyond 10.00 pm.   I am satisfied that the circumstances of Mr Moses’ case are sufficiently unique that the finding that he has infringed the parking restriction should not lead to the imposition of any penalty.  I consider that s 21(9) and s 78A permit me to find that no penalty should be imposed. However, should there be any doubt about this, I consider that since s 78A precludes the entry of a conviction, and since there is no mandatory or minimum penalty for the offence he committed, it is open to me to direct that Mr Moses be discharged without conviction pursuant to s 106 of the Sentencing Act.

[31]     While s 21(9) refers to the Court which finds the defendant guilty being required to order the defendant to pay costs of the prescribed amount, my attention was not drawn to any prescribed amount of costs.  Since the District Court has not referred to costs in its oral decision, there is nothing to satisfy me that the costs awarded  were  the  prescribed  amount.    I have  been  unable  to  find  any  rule  or regulation which prescribes the amount of a costs award following an unsuccessful hearing under s 21 of the Summary Proceedings Act.  Given that I was not directed to anything which shows that there are prescribed amounts of costs which automatically follow a finding of guilty for the infringement which Mr Moses has committed, I am not prepared to order that he pay costs.

[32]     It follows that Mr Moses has enjoyed a measure of success in this appeal. The fine and costs which have been noted on the infringement notice are set aside.

[33]     I consider that in relation to the appeal hearing, costs should lie where they fall.

Duffy J