Nga Uri O Te Ngahue v Wellington City Council

[2004] NZCA 6

IN THE COURT OF APPEAL OF NEW ZEALAND

CA407/03

BETWEENNGA URI O TE NGAHUE

Applicant

ANDWELLINGTON CITY COUNCIL

Respondent

Hearing:16 February 2003

Coram:McGrath J
Hammond J
W Young J

Appearances:  R M Gregory for the Appellant

K M Anderson for the Respondent

Judgment:18 February 2004 

JUDGMENT OF THE COURT DELIVERED BY McGRATH J

Introduction

[1]       The applicant, Nga Uri o Te Ngahue/Te Kupenga Maori Incorporated (the applicant), seeks special leave to appeal on a question of law against a decision of the High Court dismissing an appeal against its conviction in the District Court on a charge of parking in an area reserved for the use of residents’ vehicles, contrary to bylaws of the Wellington City 1991 Part 18 (Traffic) Clause 18.18.6(d).  The principal contention of the incorporation is that the bylaw was not binding upon it.

Facts

[2]       A parking warden issued an infringement notice for the Wellington City Council on 7 March 2003 in relation to one of the applicant’s vehicles which had been parked in Abel Smith Street, in Wellington at 8.30am that day, contrary to signage indicating that parking was reserved for residents’ vehicles only.  The infringement fee was $40.  Mr Gregory, who represented the applicant in the District Court, did not dispute these facts.  The driver of the vehicle did not give evidence.  The applicant’s argument was that the bylaw had no effect in the circumstances because the respondent Council lacked legal authority to regulate parking by it.

[3]       The matter was heard before Justices of the Peace in the District Court.  They found the charge of breach of the by-law proved and convicted the appellant.  It then went on appeal to the High Court.  There Goddard J first dealt with an objection to Mr Gregory representing the corporation and exercised her residual discretion to allow him to appear.  Her Honour then addressed the question of the respondent’s jurisdiction and rejected a contention by the applicant that the Te Ture Whenua Maori Act 1993 gave Maori incorporations a separate jurisdiction in New Zealand law apart from that of the District Court.  Her Honour found that the District Court has a general summary jurisdiction, including jurisdiction over Maori organisations such as the applicant.  The sole ground of appeal accordingly failed and the appeal was therefore dismissed.  Wild J later refused to grant the applicant leave to appeal to this Court against the High Court judgment.

Leave out of time

[4]       The application for special leave to appeal, now before this Court, was apparently filed out of time.  Mr Gregory says on its behalf that this was because the applicant received the wrong forms from the High Court. In the circumstances we are prepared and do deal with the matters he has raised in support of the application for special leave, on their merits.  We received written submissions and also heard  Mr Gregory as a lay advocate representing the applicant.  We also received written submissions from Ms Anderson on behalf of the respondent.

Should leave be granted?

[5]       The questions of law which the appellant wishes to raise in this Court concern the jurisdiction of the general Courts in their summary criminal jurisdiction and the authority of the Wellington City Council to make by-laws binding on it.  Issues of the Courts’ jurisdiction over Maori persons and organisations and the impact of the Treaty of Waitangi are raised by the applicant.  They have come before this Court from time to time. 

[6]       The general rule in relation to the universal nature of the criminal jurisdiction of the Courts, including the District Court, is now well established and indeed beyond doubt.  So is the authority of local authorities to make by-laws regulating use of roads under transport and local authority legislation.  The respective jurisdiction and authority derive from statutes enacted by the New Zealand Parliament.  As to the impact of the Treaty, this Court said in R v Miru CA65/01, 26 July 2001:

Important however as the moral force of the Treaty of Waitangi is to New Zealand it does not of itself give rise to legal authority such as that exercised by the Courts in their criminal jurisdiction.  That legal authority can only be conferred by the New Zealand Parliament which has had full and exclusive legislative power in New Zealand since the adoption in 1947 of the United Kingdom Statute of Westminster 1931.

See also R v Waetford CA406/99 2 December 1999 para 7, and the other authorities there cited.

[7]       Arguments concerning the effect in this context of the Te Ture Whenua Act 1993, similar to those advanced in this case, were also rejected in R v Miru. 

[8]       The applicant seeks to distinguish its case from Miru, and the other decisions of this Court to similar effect, but is unable to do so.  No questions of general public importance are raised by the application for special leave to appeal as these issues have been fully ventilated and resolved by earlier decisions of this Court to the extent that they are not open to further argument before it.

[9]       The other grounds raised by the applicant in written submissions are narrow technical points of little significance.  These points, concerning the effect of brackets surrounding a statutory provision on the validity of an information, and the need to address “relevant cultural factors” in deciding the appeal, do not present an arguable question of law.

Conclusion

[10]     Applying these principles the Court must refuse the application for special leave to appeal.  There will be no order for costs.

Solicitors:

Phillips Fox, Wellington, for Respondent