Newall v Christchurch City Council

[2013] NZHC 2303

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-409-000061 [2013] NZHC 2303

BETWEEN  GRAHAM NEWALL Appellant

ANDCHRISTCHURCH CITY COUNCIL Respondent

Hearing:                   29 August 2013

Appearances:           Appellant Appears in Person

B K Pizzey for Respondent

Judgment:                5 September 2013

JUDGMENT OF D GENDALL J

Introduction

[1]      The  appellant  appeals  against  infringement  offences  proved  and  fines imposed by the District Court on two vehicle-related infringement notices issued by a parking officer for the Christchurch City Council (Council).   As they were infringement offences, there was no conviction.  The District Court on 13 June 2013 found both offences proved and imposed a fine of $200 and court costs of $132.89 on each offence.

Factual background

[2]      Offences were proved against the appellant on one charge of operating a motor vehicle on a road not displaying an authorised licence and a second charge of operating a vehicle on a road when the vehicle was not displaying current evidence of vehicle inspection.

[3]      The specific infringement notices in question were:

NEWALL v CHRISTCHURCH CITY COUNCIL [2013] NZHC 2303 [5 September 2013]

(a)      Notice numbered 5228447 being for an offence against s 34(1)(b) of the Land Transport Act 1989 (for operating a motor vehicle on a road when the vehicle is not displaying current evidence of a vehicle inspection); and

(b)      Notice numbered 5228448 being for an offence against regulation

85(2)(a) of the Land Transport (Motor Vehicle Registration and Licensing) Regulations 2011 (of permitting a vehicle to be on a road when the motor vehicle displayed a licence that was not authorised to be affixed to the vehicle under Part 17 of the Land Transport Act

1998).

[4]      This case involved a stationary vehicle - a Ford Capri, registration number

TS6598  (the  vehicle)  –  parked  on  Poulson  Street, Addington,  Christchurch,  on

8 February 2012.

[5]      In the District Court, the Council parking officer gave evidence that the vehicle was registered as a Class “B” agricultural vehicle (despite the fact that it appeared to be a soft-top, two door, red convertible sport Capri motor car).  He noted an odometer reading of 234,318.  He said that he did not see any trade plates on the floor.  The parking officer noted in his evidence that the vehicle had travelled 599 kilometres by the time it was actually issued with a warrant of fitness 25 days later and  that  it  had  travelled  7,971  kilometres  since  its  previous  warrant  issued  on

28 January 2011.  That evidence, it was said, pointed to an abuse of the Class “B”

regulations.

[6]      The appellant, Mr Newall, did not dispute that the vehicle was, unwarranted or that it was parked on a legal road adjacent to his motor mechanics workshop in Poulson Street.  He asserted, however, that trade plates were in the vehicle on the floor and the Court accepted that his reasoning was that it was unsafe to leave the plates on the outside of the vehicle in that particular area of town because of likely theft.

[7]      Mr Newall’s defence was that the trade plates excused him from complying with the regulations under which these notices were authorised.  The District Court judgment  states  that  before  it  evidence  of  the  vehicle’s  movements  shows  that Mr Newall had abused the right to simply drive to get the vehicle repaired and warranted.  The Court was of the opinion that Mr Newall’s abuse of the rights for trade plates and the Class “B” classification nullified his defence.  The Court found the charges proved.   As noted, a fine of $200 plus court costs of $132.89 was imposed on each offence.

Arguments for the appellant

[8]      The  appellant’s  Notice  of Appeal  purports  to  be  an  appeal  against  both conviction and sentence.   However, before me, all the appellant’s arguments were directed to his appeal against conviction.  There were no submissions advanced with respect to sentence.

[9]      The  appellant  appeals  on  the  following  specific  grounds  outlined  in  his

Notice of Appeal:

(a)       That  he  provided evidence  of dealer  trade  plates which  nullifies specific  distance  travelled  on  a  public  road  for  the  purposes  of vehicle repair

(b)       In addition, dealer trade plates nullify the need for a current warrant of fitness on a public road.

[10]     The appellant before me also endeavoured to suggest that the effect of a vehicle on “trade plates” meant that it could legitimately travel 50 kilometres (including on an expired warrant of fitness) providing a statutory NZTA vehicle safety check  sheet had  been filled  out, signed  and carried in the vehicle.   The appellant argued that the evidence here showed that trade plates were carried in the vehicle, as was a completed statutory NZTA vehicle safety check sheet, and that the total return distance between his home address at Bamfords Road and Poulson Street in Addington was only 29 kilometres.  Given that, the appellant submitted that “both infringements must be thrown out of Court”.

Arguments for the respondent

[11]     In his submissions opposing the present appeal, Mr Pizzey for the Council contended that the power of the High Court on appeal here is to make any decision it thinks should have been made, or to give directions to the District Court to re-hear, reconsider or enter judgment as directed, or to make any order that the High Court thinks just, including any order as to costs.

[12]     He noted that in the District Court, the Justices of the Peace made findings as follows:

The infringement notices were issued to TS6598, a Ford Capri;   The vehicle was on a road;

The vehicle was registered as a Class “B” agricultural vehicle;   The vehicle was unwarranted;

The appellant asserted there were “trade plates” on the floor of the vehicle;

The vehicle  had  then  travelled  599  kilometres  between  the  time  of  the infringement  notices  being  issued  and  the  new  warrant  of  fitness  being

issued.

[13]     The appellant’s defence in the District Court was essentially that the trade plates excused him from complying with the regulations.  The Justices found that the distance  travelled  in  the  vehicle  between  the  infringement  notice  being  issued (8 February  2012)  and  the  subsequent  warrant  of  fitness  (23  February  2012) effectively nullified his defence as it was an “abuse of the rights of the trade plates and the Class “B” classification to travel a distance of this magnitude over this period.

[14]     The warrant of fitness on the appellant’s vehicle at the time the infringement

notices were issued had expired in about August 2011.  There were no dealer plates

attached to the outside of the vehicle.   A “B” class licence was attached to the vehicle.    The  motor  vehicle  was  registered  to  Cyber  Cars  1000  Ltd,  and  the appellant, who accepted he was operating the vehicle at the time, is a director of that company.

[15]     The appellant’s evidence was that the vehicle was a farm vehicle for his orchard in Allendale, and that he had brought it to his workshop in Poulson Street “for repairs”.  In the District Court, the appellant did lead some evidence disputing that the vehicle was on a road, but finally accepted that it was on a “legal road” at the time.

The statutory offences – not displaying current evidence of vehicle inspection

[16]     The respondent’s submissions first deal with s 34(1)(b) of the Land Transport Act 1998.   Under s 6 of the Land Transport Act 1998 a person cannot operate a vehicle on a road without the appropriate current evidence of vehicle inspection. Reference  is  also  made  to  Part  11  of  the  Land  Transport  Act  1998  and  the subordinate legislation and regulations made thereunder, including the (Land Transport Rule:  Vehicle Standards Compliance 2002 (Rule)) for the control over the entry of vehicles into, and the operation of vehicles in, the land transport system.

[17]     The Rule applies to all persons operating a motor vehicle, and all motor vehicles operated, on a road in New Zealand.  Section 7 prescribes inspection and certification of vehicles for “operation in service” and applies to all vehicles in service with specified exceptions in Rule 7.1(1).  None of those exceptions, it is said, apply to this vehicle.   The exception in Rule 7.1(1) for “an agricultural vehicle operated at not more than 40 kilometres per hour” excludes a vehicle that is designed or constructed for general road use which is the case here.

[18]     Rule 7.9(b) prescribes issuing evidence of vehicle inspection in the form of a warrant of fitness while Rule 9.3(2) provides that the warrant of fitness must specify an expiry date and by Rule 9.7, a warrant of fitness ceases to be current after its expiry date.

[19]     Rule 10.2 provides for an exception if the vehicle is only being operated for the sole purpose of bringing it into compliance and it is safe to be operated for that purpose.  And, s 34 of the Land Transport Act 1998 provides that a person commits an offence if the person operates a vehicle on a road without current evidence of a vehicle inspection as may be required by the rules.

[20]     In this case, the vehicle is a registered motor vehicle with registration plates TS6598 in service.  The warrant of fitness displayed had expired in August 2011.  It is accepted that the vehicle was on a road. The respondent maintains that none of the exceptions in the rule from the requirement to obtain a current warrant of fitness apply, the vehicle was not being solely used for the purpose of bringing it into compliance and there is no general exception for vehicles with “trade plates”.

Operating a vehicle on a road displaying an unauthorised licence

[21]     Regulation 85(2)(a) of the Land Transport (Motor Vehicle Registration and Licensing)  Regulations  2011  (the  Regulations)  states  that  a  person  commits  an offence if the person operates a motor vehicle on a road if the motor vehicle displays a licence that is not authorised to be affixed to the vehicle under Part 17 of the Land Transport Act 1998.   The statutory provisions in relation to the “B” class on the licence (which was displayed here) and its meaning define “Exempted vehicle” as in the Land Transport Management (Apportionment and Refund of Excise Duty and Excise-Equivalent Duty) Regulations 2004.   An “exempted vehicle” is exempted from registration under regulations made under Part 17 of the Land Transport Act

1998.  This does not include, however, any vehicle that is licensed or that has trade plates affixed to it in the manner required under Part 17.

[22]     Licences showing a class “B” motor vehicle can be affixed only to vehicles that fall within the specified exemptions.   None of those exceptions, it is said, applied to this vehicle.

[23]     In any event, even if the Ford Capri here was entitled to be a Class “B” vehicle,  the  licence  is  authorised  to  be  affixed  only  if  the  vehicle  has  current evidence of vehicle inspection, and the warrant of inspection on this vehicle, it was acknowledged, had expired.

[24]     Finally, the respondent contended that trade plates within the vehicle were irrelevant as the vehicle had the current registration plates TS6598 affixed to the vehicle.

Discussion

[25]     The two infringements were found proven at first instance.

[26]     In  the  first  infringement  notice,  the  Council  allege  that  the  appellant committed an offence against s 34(1)(b) of the Land Transport Act 1998 in that he operated a private vehicle on a road when the vehicle was not displaying current evidence of vehicle inspection, i.e. a current warrant of fitness.

[27]     Section 6 of the Land Transport Act 1998 provides that if the rules require a vehicle to have current evidence of vehicle inspection, a person cannot operate a vehicle on a road without the appropriate current evidence of vehicle inspection.

[28]     Part  11  of  the  Land  Transport  Act  1998  provides  for  land  transport subordinate legislation.  The Land Transport Rule:  Vehicle Standards Compliance

2002 (the Rule) is authorised by the Land Transport Act 1998 and exercises control over the entry of vehicles and operation of vehicles in the land transport system.

[29]     The Rule clearly applies to all persons operating a motor vehicle on a road in New Zealand (Rule 1.2).  Rule 7 prescribes inspection and certification of vehicles for “operation in service”.   As noted above, it applies to all vehicles operated in service, with the exceptions listed in Rule 7.1(1).  Again, none of those exceptions appear to apply in this case.  The appellant’s vehicle was not a pedal cycle, moped with two or three wheels, an armoured vehicle, a traction engine, a mechanically- propelled roller, a crane with self-laying tracks, a tractor, a trailer or an all-terrain vehicle.   The only possible exception that could apply to the vehicle in the circumstances would be Rule 7.1(1)(k), an agricultural motor vehicle operated at not more than 40 kilometres per hour.  However, this vehicle clearly was not solely an agricultural  vehicle  and  without  question  would  not  have  travelled  at  less  than

40 kilometres per hour as it was driven regularly from the appellant’s property to his

workshop.

[30]     Rule 7.9(b) prescribes issuing evidence of vehicle inspection in the form of a warrant of fitness.   Rule 9.3(2) provides that a warrant of fitness must specify an expiry date and Rule 9.7 states that a vehicle’s warrant of fitness ceases to be current after its expiry date.

[31]     Rule 10.2 allows the use of a vehicle after the expiry date of its warrant of fitness if the vehicle is being operated solely for the purpose of bringing it into compliance and it is safe to be operated for that purpose, but that provision could not be said to apply in the circumstances prevailing here.

[32]     Section 34 of the Land Transport Act 1998 provides that a person commits an offence if the person operates a vehicle on a road without current evidence of vehicle inspection as may be required by the rules.   Under s 34, as I understand it, the potential penalty is a fine not exceeding $2000.00.

[33]     The appellant’s vehicle is a registered vehicle with registration plates TS6598 and  the vehicle is  in  service.   The warrant  of  fitness  displayed  had  expired  in August 2011.  The vehicle was on a road.  I am satisfied that none of the exceptions in the Rule from the requirement to have a current warrant of fitness apply here.

[34]     Also, the appellant’s vehicle was clearly not being used solely for bringing it

into  compliance,  as  the evidence before the District  Court  was  that  it travelled

599 kilometres before a warrant of fitness was finally issued.  Even if it was used on the  appellant’s  farm,  as  he  contended,  it  is  unlikely  to  have  done  that  many kilometres in such a short timeframe.

[35]     There appear to be no exceptions for vehicles with “trade plates”.  Even so, this vehicle was registered with normal registration plates TS6598.  The trade plate argument is without foundation.

[36]     This first infringement has clearly been proved beyond any doubt.

[37]     The second infringement notice as I have said above relates to Regulation

85(2)(a)  of  the  Land  Transport  (Motor  Vehicle  Registration  and  Licensing)

Regulations  2011,  in  that  the appellant  operated  a motor vehicle by causing or permitting it to be on a road when the motor vehicle displayed a licence (the “B” class licence) that was not authorised to be affixed to the vehicle.

[38]     Part 17 of the Land Transport Act 1998 governs motor vehicle registration and  licensing.     Here,  the  vehicle  had  a  “B”  classification  registration.    The regulations provide that the letter “B” on a licence means “an exempted motor vehicle (within the meaning of the Land Transport Management (Apportionment and Refund of Excise Duty and Excise-Equivalent Duty) Regulations 2004) for which current evidence of vehicle inspection is required.” (Emphasis added.)

[39]     Under  the  Land  Transport  Management  (Apportionment  and  Refund  of Excise Duty and Excise-Equivalent Duty) Regulations 2004, Regulation 3, an exempted vehicle, however, is defined as:

exempted vehicle –

(a)        means a motor vehicle that is –

(i)       exempted from registration under regulations made under

Part 17 of the Land Transport Act 1998; or

(ii)      of the kind described in the Schedule; but

(b)      does not include any vehicle that –

(i)       is licensed; or

(ii)      has trade plates affixed to it in the manner prescribed in regulations made under Part 17 of the Land Transport Act

1998.

[40]     The vehicle in this case does not meet the requirements for an exempted vehicle under regulation 3(1)(i), because s 242 of the Land Transport Act 1998 requires that a vehicle must be registered and licensed in accordance with this Part and have affixed to it registration plates and the licence appropriate for its use under s 244.

[41]     Regulation 3(a)(ii) is referring to the Schedule under the Land Transport Management (Apportionment and Refund of Excise Duty and Excise-Equivalent Duty) Regulations 2004 for the list of exemptions.  These generally include various

types of agricultural vehicles such as tractors and farm vehicles used on a section of a public road or state highway.  The exemptions all refer to the vehicles being used “only for specified purposes” or “solely in connection with agricultural operations”.

[42]     Regulation 3(b)(i) in my view is not relevant here as a licensed vehicle is defined by these regulations as a “motor vehicle that is required to be licensed under the Road User Charges Act 2012 and to which a licence within the meaning of that Act relates at all times during any period in respect of which a refund is applied for under s 41 of the Land Transport Management Act 2003.” That is not the case here.

[43]     Regulation 3(b)(ii) provides that a vehicle that has trade plates affixed to it is not an exempt vehicle.  The trade plate argument seemed to be the appellant’s main submission.  The regulations clearly state, however, that a vehicle with trade plates is not an exempt vehicle within their meaning.

[44]   Therefore, nothing in these particular regulations assists the appellant’s argument.  I am satisfied the appellant’s vehicle is not an exempt vehicle.

[45]     Regulation 19(1)(a) of the Land Transport (Motor Vehicle Registration and Licensing)  Regulations  2011  states  that  motor  vehicles  described  in  Part  1  of Schedule 2 are exempt from the continuous licensing requirement.  There is a long list of exemptions in Schedule 2, but it clear here that none of those apply to the appellant’s vehicle.   This vehicle is not a tractor, a traction engine, a forklift, any type  of  self-propelled  machine,  a  vintage  motor  vehicle,  a  pedestrian-controlled motor vehicle, an all terrain vehicle, a motor vehicle being held for the purpose of sale, a stolen vehicle, a trailer or an exempted vehicle under the Land Transport Management (Apportionment and Refund of Excise Duty and Excise-Equivalent Duty) Regulations 2004.

[46]     And, Schedule 1  of the  Land Transport  (Motor Vehicle Registration  and Licensing) Regulations 2011 provides that a vehicle with a class “B” licence is only authorised to have that licence affixed if the vehicle has current evidence of vehicle inspection.  It is not disputed here that the warrant of inspection on this vehicle had expired.

[47]     I am satisfied too that the trade plates arguments are irrelevant here as the vehicle had current registration plates affixed.

[48]     On this, the appellant also endeavoured to argue that he had done a statutory NZTA vehicle safety check, referring to his trade plates argument.  He said that trade plates were carried in the car, he had conducted a vehicle safety check as required and the total distance travelled on trade plates was only 29 kilometres, less than the

50 kilometres permitted by law.

[49]     However, in my view, once the trade plate argument is accepted as irrelevant, because  the  vehicle  had  normal  registration  plates,  the  rest  of  the  appellant’s argument in relation to the vehicle safety check and the total distance travelled also becomes irrelevant.  And in any event here, as the evidence before the District Court showed, the substantial mileage covered by this vehicle at the time would seem to negate any possible trade plates argument.

[50]     I am satisfied therefore that this infringement offence has also been proved beyond any doubt on the evidence available.

Conclusion

[51]     I conclude therefore that, for all the reasons outlined above, I consider that the Justices’ decision was correct.   Both infringements have been proved beyond doubt and that the appellant’s vehicle does not fall within any of the exceptions, either in terms of the Land Transport Act 1998 or in the regulations made under that Act.

[52]     The appeal against conviction accordingly is dismissed.

[53]     As to the appellant’s notional appeal against sentence, I noted at the outset that no submissions in support of this appeal were advanced to me by the appellant. I can only presume that this aspect of his appeal was abandoned.

[54]     But, in any event, the fines imposed of $200 (given that, as I understand it, the maximum fine on each was $2000) plus court costs of $132,89 on each offence, in my view were appropriate and in the proper range.

[55]     The appeal against sentence is also dismissed.

...................................................

D Gendall J

Solicitors:

Copy to Appellant

Christchurch City Council, Legal Services Unit, Christchurch