Naresh v New Zealand Road Transport Agency HC Auckland CRI-2011-404-325

[2011] NZHC 1951

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-325

BETWEEN  RAJ NARESH Appellant

ANDNEW ZEALAND TRANSPORT AGENCY Respondent

Hearing:         28 November 2011

Counsel:         Appellant in Person

K Chang for the Respondent

Judgment:      2 December 2011

RESERVED JUDGMENT OF ELLIS J

This judgment was delivered by me on 2 December 2011

At 3 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:      Crown Solicitors, PO Box 2213, Auckland 1140

Copy To:       R Naresh, 20 Mickle Street, Te Atatu South, Waitakere

NARESH V NEW ZEALAND TRANSPORT AGENCY HC AK CRI-2011-404-325 2 December 2011

[1]      Mr Naresh is a taxi driver.   It appears he is embroiled in disputes with the Land Transport Safety Agency (LTSA) over a number of matters relating to the operation of his taxi.  The present dispute relates to his conviction for contravening s 5(1)(d) of the Road User Charges Act 1977 (“RUCA”).   The conviction arose because he is the owner of a car that was operated on a road in circumstances where the distance recorder showed 9,121 kilometres more than the maximum reading permitted by his licence.

[2]      Mr Naresh was required to have such a licence because the car runs on diesel. Such a licence specifies (inter alia) the minimum and maximum distance readings for that vehicle.  Those specified distance readings can be increased by payment of the relevant road user charges.  In other words mileage is “purchased” prospectively under the Act.

[3]      The penalty for an offence of this sort is calculated by trebling the road user charges  that  would  ordinarily  have  been  payable  for  the  excess  mileage.    In Mr Naresh’s case this calculation yielded a fine of $1395.  The Justices of the Peace (JPs) also ordered that he pay court costs.

[4]      On 16 November 2010 Transport Officers from the New Zealand Transport Agency (NZTA) served a notice on Mr Naresh under s 198 of the Land Transport Act 1998 (“LTA”) requiring him to present his vehicle for inspection at the Police CVIU in Stanley St, Parnell. The inspection occurred on 25 November 2010.  The officer conducting the inspection incidentally found that the distance recorder had a reading of 554,480 kilometres whereas the licence specified maximum mileage of

545,359 kilometres.

[5]      Mr Naresh was given an opportunity to pay the overdue amount, together with other overdue RUC amounts, by instalments.  As I understand it, he declined because he could not afford the instalments.   The evidence was that he told the officers he would update his licence “tomorrow”, but he did not.

[6]      For reasons that are unclear to me, an infringement notice was not issued until nearly three months later, on 18 February 2011.1     The infringement notice described the offence as “Driving outside mileage stated on licence” and stated that the time and date of the offence was “25/12/2010” at “14.30 hrs”.  The place where the offence was said to have been committed was “Stanley Street Parnell”.   The accompanying letter also mistakenly referred to the relevant date as 25 December but

made it clear that the offence was allegedly committed at the CVIU premises.  The letter referred to the subsequent fact that no further road user licence had been purchased by Mr Naresh in the intervening three month period.

[7]      A reminder notice was later sent.   The copy on the Court file is undated although  it  specifies that  the last  day for payment  of the infringement  fee  was

26 April 2011.  It repeats the error as to the date of the offence but accurately gives the details of the offence as Mr Naresh being:

... THE OWNER OF A MOTOR VEHICLE WHICH WAS OPERATED ON A ROAD WHEN THE READING OF THE DISTANCE RECORDER WAS MORE   THAN   THE   MAXIMUM   READING   SPECIFIED   IN   THE LICENCE FOR THAT VEHICLE.

ROAD USER CHARGES ACT 1977 SECTION 5(1)(D) AND 23.

[8]      The place where the offence is said to have occurred is stated to be “Parnell”.

[9]      In due course Mr Naresh pleaded not guilty to the offence and a hearing was conducted on 10 August 2011.  On 19 June 2011 he had purchased a further licence with 20,000 more kilometres on it.

[10]     Mr Naresh’s principal grounds of defence2  were that the infringement and reminder notices were null and void because of the mistake:

1 I note that s 14 of the Summary Proceedings Act 1957 imposes a 6 month limitation period for laying an information. In relation to an information for an offence under RUCA s 23(5) of that Act extends that limitation period to two years. The question is whether those periods are equally applicable to proceedings that are initiated by the infringement notice procedure.

2 Although Mr Naresh raised other procedural deficiencies (such as the principal LTSA witness not

using his full name when taking the oath and there being a reference in one of the documents to

Mr Naresh’s car having a hubometer rather than a speedometer) I do not consider these to be of any

legal moment and do not propose to consider them further.

(a)      as to the date of the offence (both specifying Christmas Day rather than 25 November as the relevant dates); and

(b)as to the location of the offence as “Stanley St” which he said was in error because the inspection occurred at a depot on the corner of Beach Rd, Parnell Rise and Stanley St.

[11]     As to the first mistake, the JPs were of the view that it was a defect that could be cured by s 204 of the Summary Proceedings Act 1957 (the SPA).

[12]     The second matter is somewhat more vexed and does not appear to have been directly considered by the JPs.  Mr Naresh’s argument seemed to have two limbs.

[13]     First, as I understand it, Mr Naresh says that the vehicle was not in fact at any material time “on” Stanley St.  Rather, he said that the car was at the CVIU premises, one side of which happens to abut Stanley St.  Mr Naresh was told to drive into the depot using the entrance on Churchill St and (as I understand it) may not have operated the car on Stanley St at all.

[14]     By itself the “Stanley St” argument might seem a little cute.  But there is a more fundamental aspect to it.  That is that it cannot be said that while the vehicle was being inspected at the Police depot it was being driven or operated on a “road”. Although the definition of “operate” in RUCA s 2 would appear to be broad enough to encompass a stationary vehicle, the definition of “road” is not sufficiently wide to cover the CVIU premises.

[15]     Although  when  being  cross-examined  by  Mr  Naresh  the  LTSA  officer concerned maintained that the depot was within the statutory definition RUCA, s 2 defines that word as including “a highway (whether or not it has been declared to be a State highway) and a street”.3    This can be compared, for example, to the much more expansive definition in the Land Transport Act which (inter alia) includes “A

place to which the public have access, whether as of right or not” and would, in my

3 This can be compared with the much broader definition in the Land Transport Act which includes

(inter alia) “A place to which the public have access, whether as of right or not”.

opinion, therefore cover the CVIU premises.   No doubt the narrower focus in the RUCA definition on the ordinary meaning of “road” is consistent with the purpose of that Act which is to impose a charge for the “use of roads by heavy vehicles and certain other vehicles”.  In any event, and notwithstanding that the RUCA definition is inclusive, it is arguable that the legislative context and purpose would not warrant giving the word an extended meaning that extends to include inspection premises of

the sort presently at issue.4

[16]     The countervailing argument would be that the offence of operating a vehicle in contravention of s 5(1) is, in effect, a continuing one and that even if it was not committed at the CVIU it must, by definition, have been committed prior to that date.  In order for mileage on the distance recorder to exceed the licensed amount by over 9000 kilometres it can reasonably be inferred that the vehicle was operated on a road in contravention of s 5(1) for some considerable time before 25 November

2010.

[17]     Notwithstanding the logic of this analysis, it seems to me to be possible to conclude that the offence disclosed on the face of the infringement and reminder notices, was not committed by Mr Naresh.  More particularly:

(a)       There was no evidence that the vehicle was operated on a road on

25 December 2010;

(b)      There was no evidence that the vehicle was operated on Stanley St on

25 November 2010;

(c)       While   the   vehicle   was   “operated”   at   the   CVIU   premises   on

25 November 2010, the CVIU premises arguably do not constitute a

“road” in terms of s 5(1).

4 I also find it somewhat troubling that the vehicle would not have been “operated” at the CVIU depot at all unless Mr Naresh had been compelled to bring it there by law (ie by the s 198 notice). I do not propose to take that point further in the present context, however.

[18]     The issue therefore becomes whether ss 43 and 204 of the SPA operate to cure these defects.

[19]     On their face, the notices were not “sufficient fairly to inform” Mr Naresh of the “time, place, and nature of the alleged offence”.5   More particularly, if Mr Naresh had  merely  received  the  infringement  notice  in  late  February 2011  without  the accompanying letter and without having had a conversation with the LTSA officials at the depot on 25 November, he might justifiably have been somewhat mystified by its contents.6

[20]     That said, however, I do not think that it could reasonably be said that the notices are so defective that they cannot properly be regarded as notices at all.  The notices could be amended easily enough under SPA s 43.   And as I have said, Mr Naresh must have known that his car had exceeded its permitted mileage and, presumably, that it had been operated by him at various times prior to 25 November

2010 (and after that date) in clear breach of his licence.   Moreover the fact of the

accompanying  letter  and  Mr  Naresh’s  conversation  at  the  CVIU  premises  on

25 November  2010  means  that,  in  this  case,  he  could  have  been  under  no misapprehension about the subject matter of the notices.  No miscarriage of justice can be said to have occurred.

[21]     For these reasons, and while I regard the errors as unfortunate, it seems to me that Mr Naresh’s appeal cannot succeed.  The defects do not render the notices void or  invalid.    There  was  power  to  amend  them  if  necessary.    More  importantly, however, it cannot be said that Mr Naresh has not been prejudiced by the defects.

[22]     The appeal must be dismissed accordingly.

Rebecca Ellis J

5 This is a requirement in relation to reminder notices under s 140 of the Land Transport Act 1998.

6 As I have already noted above the accompanying letter was also defective in terms of the date of the alleged offending.