Naresh v New Zealand Transport Agency
[2019] NZHC 523
•21 March 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-002154
[2019] NZHC 523
BETWEEN RAJ NARESH
Appellant
AND
NEW ZEALAND TRANSPORT AGENCY
Respondent
Hearing: 21 March 2019 Appearances:
Appellant in person
H Reid for respondent
Judgment:
21 March 2019
INTERIM JUDGMENT OF LANG J
[on issues as to jurisdiction]
This judgment was delivered by me on 21 March 2019 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
NARESH v NEW ZEALAND TRANSPORT AGENCY [2019] NZHC 523 [21 March 2019]
[1] Mr Naresh wishes to earn a living as a taxi driver. In order to do so he must hold a P endorsement on his drivers licence. He has held such an endorsement in the past, but in 2009 and 2014 the New Zealand Transport Agency (the Agency) declined to renew the endorsement because of persistent traffic offending by Mr Naresh.
[2] Mr Naresh appealed against the latter decision to the District Court, but in a decision delivered on 2 June 2015 Judge Bergseng dismissed the appeal on the basis that Mr Naresh was not a fit and proper person to hold a P endorsement.1 The Judge disqualified Mr Naresh from holding such an endorsement for six years from 12 June 2011. The Judge’s decision was upheld on appeal to this Court.2
[3] When the period of disqualification expired, Mr Naresh immediately applied for a P endorsement. The Agency declined to grant it on the ground that he was not a fit and proper person to hold such an endorsement. Mr Naresh again appealed to the District Court, but in a decision delivered on 7 September 2018 Judge A A Sinclair dismissed the appeal.3 Mr Naresh now seeks to appeal to this Court against that decision.
[4] Two preliminary issues need to be determined before the appeal can be heard. Both relate to the question of whether this Court has jurisdiction to hear and determine the appeal. The issues are:
(a)Did Mr Naresh bring the appeal within 20 working days as required by s 111A(2) of the Land Transport Act 1998 (the Act) and r 20.4 of the High Court Rules 2016 (the Rules)?
(b)Does the appeal raise a question of law in terms of S 111A(1) of the Act?
1 Naresh v New Zealand Transport Agency [2015] NZDC 6324.
2 Naresh v New Zealand Transport Agency [2015] NZHC 2113.
3 Naresh v New Zealand Transport Agency [2018] NZDC 18612.
Did Mr Naresh bring the appeal within 20 working days as required by s 111A(2) of the Act and r 20.4?
[5]Section 111A of the Act provides as follows:
111A Appeal to High Court on question of law
(1)A party to an appeal under section 106 who is dissatisfied with the decision of the District Court on the grounds that it is erroneous in law may appeal to the High Court on that question of law.
(2)An appeal under this section must be heard and determined in accordance with the rules of the High Court.
[6] Rule 20.4 of the Rules provides that, if a party has a right of appeal to the High Court, an appeal must be brought within the time specified in the enactment providing the right of appeal or, in every other case, within 20 working days after the decision appealed against is given. The Act does not specify when an appeal under s 111A must be brought. As a result, any such appeal must be brought within 20 working days as required by r 20.4. It follows that in the present case Mr Naresh was required to bring any appeal under s 111A no later than 5 October 2018, being 20 working days after the Judge delivered her decision.
[7] Rule 20.6 of the provides that an appeal is brought when the appellant files a notice of appeal and serves a copy of the notice on every party directly affected by the appeal. Mr Naresh was therefore required to both file the notice of appeal and serve a copy of it on the respondent no later than 5 October 2018. There is no dispute that Mr Naresh filed the notice of appeal in this Court on 4 October 2018. An issue arises, however, as to whether he also served it within the time permitted by r 20.4.
[8] The issue is complicated by the fact that Mr Naresh wrongly named the law firm Meredith Connell as the respondent in his notice of appeal. That error was corrected on 6 November 2018, when Hinton J directed that the Agency be substituted as respondent.
[9] Mr Naresh maintains that he posted a copy of the Notice of Appeal to Meredith Connell on 3 October 2018. He marked it as being for the attention of Ms McConachy who appeared as counsel for the Agency at the hearing in the District Court. It appears
that Meredith Connell has no record of receiving the notice. If Mr Naresh is correct in his assertion, however, it is likely that the notice would have been served within the prescribed time because at that stage Meredith Connell was the respondent named in the notice of appeal.
[10] On this point I am prepared to accept Mr Naresh’s assertion even though there is no independent evidence to support it. I therefore proceed for present purposes on the basis that Mr Naresh brought the appeal within the 20 working day period prescribed by r 20.4.
Does the appeal raise a question of law?
[11] The procedure governing the appeal to the District Court was prescribed by s 111 of the Act, which provides:
111 Procedure
(1)Every appeal under this Act to the District Court must be brought, by way of originating application, not later than 28 days after the date on which the appellant was notified of the decision appealed against, or within such further period as the District Court may allow.
(2)In dealing with an appeal under this Act, the District Court may hear all evidence tendered and representations made by or on behalf of any party to the appeal that the court considers relevant to the appeal, whether or not that evidence would be otherwise admissible in that court.
(3)Every such appeal must be made and determined in accordance with [the District Court Act 2016] and the rules of court made under that Act, but the application of that Act and those rules is subject to the other provisions of this section.
(4)Subject to sections 107, 111A, and 111B, the decision of the District Court on any appeal under this Act is final.
[12] Sections 107 and 111B are irrelevant for present purposes. They relate to appeals against orders for disqualification from driving and appeals to the Court of Appeal respectively. The only basis on which Mr Naresh could appeal to this Court against the Judge’s decision is under s 111A of the Act, which relevantly provides:
111A Appeal to High Court on question of law
(1) A party to an appeal under section 106 who is dissatisfied with the decision of the District Court on the grounds that it is erroneous in law may appeal to the High Court on that question of law.
…
[13] The insertion of s 111(4) demonstrates Parliament’s intention that the decision of the District Court should be final subject only to a limited number of exceptions, one of which is that an appellant may apply to the High Court on a question of law. An appellant seeking to advance a second appeal to this Court must therefore identify the question of law that will form the basis of the appeal.
[14] The latest version of Mr Naresh’s notice of appeal can be disregarded for present purposes because it states the sole grounds of the appeal as being “Miscarriage of justice”, “Unfair decision by Her Honour Judge Sinclair” and “Original Application to be Reheard”.4 Those are clearly not questions of law for the purposes of s 111A.
[15] In a document attached to the original notice of appeal Mr Naresh sets out several arguments in support of the present appeal. First, he refers to observations made by Brewer J about Mr Naresh’s traffic convictions in his judgment dismissing Mr Naresh’s appeal against Judge Bergseng’s decision in 2015. Those issues are plainly not relevant to any appeal against Judge Sinclair’s decision.
[16] Next, the document refers to evidence given before Judge Sinclair by Mr Michael Beedell regarding Mr Naresh’s traffic offence history. He criticises the accuracy of this evidence but that is a factual issue and does not raise any question of law. Mr Naresh then gives reasons or explanations for traffic offences he was charged with between March 2015 and June 2018. Again, no question of law is evident from these.
[17]The document ends with the following plea by Mr Naresh:
Final Submission
Your Honour I started driving taxis in 1975 and in 1991 I was suspended for 5 years. From 1997 I did not have any issue for the renewal of my P endorsement until 2008 and then January 2009 the
4 Emphasis not added.
application was declined and then approved in 29th June 2010 until 2011.
(a)From 1997 to 2011 I had no complaints from any member of public
(b)No intake of drugs of any kind or sort
(c)No complaints for sexual harassment
(d)No indecent acts committed with passengers
(e)No complaints from the police of any kind
(f)No complaints of overcharging at all
Your Honour I request the court if the P endorsement can be granted claiming I will approve that I am a fit and proper person to serve the members of the public.
(g)It is very hard to live on a super benefit and to meet all my commitments, e.g. mortgage, insurance rates and house contents insurance and mortgage repairmen insurance
So I request the court to make my life easy to earn extra income and make a happy living.
Please I will supply additional information to the court soon.
[18] These submissions proceed on the basis that this Court has the ability to reconsider the issue that was before the District Court afresh. That is not the case. The Court may only entertain a review on questions of law. None of these submissions raise any question of law.
[19] During the hearing I gave Mr Naresh a further opportunity to nominate the questions of law he wished this Court to determine. He emphasised that the hearing before Judge Sinclair wrongly proceeded on the basis that he had 107 traffic convictions as at the date of the earlier hearing before Judge Bergseng when he only had 43 as at that date. Judge Sinclair only referred to this issue, however, when she set out the background to the appeal during the opening paragraphs of her decision.5 Judge Sinclair’s focus was understandably not on the convictions Mr Naresh had sustained prior to 2014 but rather on those he had accumulated between 2014 and 2017. This is evidenced by the following passage in her decision:
[24] Even if some of the entries on the traffic charges schedule are not correct, the entries referred to related to offending which is now of a historical nature. What is significant is that the appellant has continued to offend. At the time his P endorsement was last renewed in 2010, the appellant was warned that if he continued to offend a fresh determination as to his fitness to hold a P endorsement would be made. In his 2014 decision, Mr Stevenson observed that the appellant had committed 24 offences since this warning had been issued.
5 Naresh v New Zealand Transport Agency above n 3, at [5].
[20] The Judge also noted that Mr Naresh accepted he had been convicted of several further traffic offences between 2014 and 2017 but maintained he had explanations for two convictions entered in 2018.6 I do not consider any question of law arises out of the fact that Mr Naresh continues to dispute the number of convictions he sustained prior to 2014.
[21] Mr Naresh also contended the Judge seemed to be ill-disposed towards him at the hearing and became impatient with him. The transcript of the hearing reveals that the Judge was required to intervene on several occasions when Mr Naresh was giving evidence and when he was cross-examining witnesses. This is not unusual when a party elects to conduct a hearing without the assistance of a lawyer. The number and nature of the occasions on which the Judge intervened during the hearing do not, however, suggest the Judge was biased against Mr Naresh or in favour of the prosecution so as to give rise to an arguable question of law.
[22] Mr Naresh ultimately asked me to adjourn the hearing to enable him to consult a lawyer. This fixture was allocated in November 2018 and Mr Naresh has therefore already had ample opportunity to consider his position and to seek legal advice. I am prepared, however, to provide him with a further and final opportunity to take those steps. I have therefore given Mr Naresh until 9 May 2019 to file and serve further submissions identifying any question of law he considers this Court should determine. If he does not file any submissions by that date the appeal will be struck out. If he files further submissions I will issue a Minute giving directions as to whether the respondent is required to file submissions in response.
Lang J
Solicitors:
Crown Solicitor, Auckland Copy to: Appellant
6 Naresh v New Zealand Transport Agency above n 3, at [28].
2