Parlane v Hamilton City Council HC Hamilton CIV 2010-419-74
[2010] NZHC 2203
•8 December 2010
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CIV-2010-419-74
BETWEEN JAMES CHARLES MORRIS PARLANE Appellant
ANDHAMILTON CITY COUNCIL Respondent
Hearing: 25 November 2010
Counsel: J Parlane in Person
D A Thresher for the Respondent
Judgment: 8 December 2010
JUDGMENT OF POTTER J
In accordance with r 11.5 High Court Rules
I direct the Registrar to endorse this judgment with a delivery time of 11 a.m. on 8 December 2010.
Solicitors: Tompkins Wake, P O Box 258, Hamilton
Copy to: J Parlane, P O Box 456, Te Awamutu
PARLANE V HAMILTON CITY COUNCIL HC HAM CIV-2010-419-74 8 December 2010
Introduction
[1] The appellant Mr Parlane was issued with an infringement notice by the Hamilton City Council on 15 February 2010 which alleged that on 15 February 2010 at 4.24 p.m. he committed an offence against s 40 Land Transport Act 1988 and r 4
Offence and Penalties Regulations 1999 and 6.6 Road User Rule 2004 in that being a driver or person in charge of a vehicle he did stop or park the vehicle in a lane restricted to a specified class or classes of vehicle without belonging to that class.
[2] On 4 June 2010 following a defended hearing the previous day in the District
Court at Hamilton Judge Spiller found the charge proved.[1]
[1] Hamilton City Council v Parlane DC Hamilton CRI-2010-019-002720, 4 June 2010.
[3] On 17 August 2010 Judge Spiller imposed a penalty of $200 and ordered the appellant to pay costs of $2,987 comprising $678 relating to an application by the Council to set aside witness summonses (which was granted, the two witness summonses being set aside) and $2,309 in respect of the defended hearing.
[4] Mr Parlane appeals against the finding of guilt and the sentence.
Grounds of appeal
[5] The grounds of appeal stated in the notice of appeal, as amplified in written
Points on Appeal, are:
a) The Judge has shown bias and favouritism toward the Informant by preventing the defendant from having his chosen and required witnesses at the hearing;
b)The Judge denied the defendant the ability to present a fair and reasonable defence;
c) The Judge refused to hear from the defence witnesses who were in contempt of Court by not answering their summonses;
d) The Judge showed bias in awarding costs to the Informant on the
Informant’s application to set aside witness summonses;
e) The Judge allowed the presentation of evidence that was not certain and did not properly show the situation of the alleged breach; the witnesses were either mistaken or lied in their evidence as to the orientation and the position of the relevant road markings.
[6] In oral submissions at the appeal hearing, Mr Parlane said the “nutshell” of the appeal was the orientation of Anglesea Street. He submitted that the bylaw relied on by the Council fails to properly identify the side of the road that became the bus lane. The evidence was that the appellant parked in the bus lane but the evidence did not establish that the appellant parked on the eastern side of Anglesea Street. Therefore the prosecution failed to discharge its burden of proof.
Respondent’s position
[7] The respondent submits that the appellant cannot satisfy the Court on appeal that it should differ from the Judge’s decision. It says that the Judge’s findings of fact from the defended hearing and his reasoning are set out in his judgment of 4
June 2010. The Judge was satisfied that there was sufficient evidence of the relevant elements of the offence to make orders against the appellant following the hearing and there are no grounds on which his decision can be held to be wrong.
The judgment appealed
[8] The Judge referred to the offence alleged against Mr Parlane. He then said:[2]
[2] At [3].
The ticket issued by the Council is numbered 326082. A copy of this ticket records that the ticket was issued at 16.24 (4.24 pm) on 15 February 2010 in
respect of a red Suzuki motor vehicle with registration number ERK370. The vehicle was recorded as having been on the east side of Anglesea Street, Hamilton. The violation recorded is that the vehicle was parked in a special vehicle lane. Accompanying the copy of the ticket produced in Court are three photographs with the ticket number 326082: these photographs show the parked vehicle recorded in the ticket, a sign marked “Bus Lane 4.00 pm to 6.00 pm Mon to Fri”, and the licence card of a vehicle “2008 Suzuki Jimny ERK370”. A certified copy of a document from the NZ Transport Agency records that the registered owner of the vehicle “ERK370 2008
Suzuki Jimny” is (and has been from 29 September 2008) James Charles Morris Parlane. On the basis of the foregoing information, the Council issued the infringement notice in question.
[9] The Judge set out the relevant statutory provisions:[3]
[3] At [5].
The infringement notice alleges that the defendant committed an offence against section 40 of the Land Transport Act 1998. Section 40(1) of this Act provides that:
A person commits an offence if the person contravenes a provision of an ordinary rule and the contravention of that provision is for the time being prescribed as an offence by regulations made under section 167.
Regulation 4(1) of the Land Transport (Offences and Penalties) Regulations1999 provides that:
A breach of a provision specified in the first column of Schedule 1 for which an infringement fee is specified in Schedule 1 is an infringement offence against the Act.
Included in the provisions in Schedule 1 is provision 6.6 this provision refers to rule 6.6 of the Land Transport (Road User) Rule 2004. Rule 6.6 reads:
A driver or person in charge of a vehicle must not stop, stand, or park the vehicle in any special vehicle lane unless –
(a)the vehicle belongs to a class of vehicle for which the lane is reserved, and stopping, standing, or parking of the vehicle is permitted at that place by signs or markings; or
(b)the vehicle is an emergency vehicle that is being used in an emergency and is operating a red beacon or red and blue beacons.
[10] The Judge then referred to the Council bylaw restricting the parking of vehicles and in particular the restriction relating to a carriageway lane on the east side of Anglesea Street as a bus lane between 4 p.m. and 6 p.m. Monday to Friday.
He noted the bylaw as Hamilton City Traffic Bylaw 2007 Schedule E which was produced in evidence.
[11] He said he was satisfied the Council had the authority to issue the infringement notice in question. He observed that the validity of the Council’s bylaw was not subject to challenge in the nature of an administrative law challenge.[4]
[4] At [7].
[12] The Judge considered an issue which has not been advanced on appeal, relating to the Council’s ticketing machines and processes. He then returned to the test of liability for the alleged infringement.[5] He noted that the two exceptions in r 6.6 did not apply. He found that r 6.6 in providing that the person in charge of a vehicle “must not” park the vehicle in a special vehicle lane, created an offence of absolute liability and “... that the defendant was liable by virtue of the clear proof
[5] At [10].
that he was the person in charge of the vehicle which infringed the prevailing bylaw”. Alternatively, if he was wrong that r 6.6 created an offence of absolute liability, he held that the rule imposed strict liability and the defendant was liable because he had not, on the evidence, proved total absence of fault. Accordingly, he found the defendant guilty of the offence as charged.
Procedural matters
Witness summonses
[13] Prior to the defended hearing Mr Parlane issued witness summonses to the Mayor of Hamilton, Mr Robert Simcock, and the Chief Executive Officer of the Hamilton City Council, Mr Michael Redmond. The Council applied to the District Court to set aside the witness summonses on the ground of abuse of process. The application was support by affidavits from the summonsed witnesses.
In a judgment[6] Judge Spiller decided in favour of the Council. He found:[7]
I have examined the affidavits of the two witnesses in question and have concluded that evidence relevant to the alleged infringement cannot be anticipated from them. Both witnesses have broad oversight over Council functions, and neither has had any personal involvement in relation to the alleged infringement.
[6] Hamilton City Council v Parlane DC Hamilton CRI-2010-019-002720, 2 June 2010.
[7] At [5].
[15] He held therefore that because the summonsed witnesses could not offer relevant evidence it would be an abuse of the Court’s processes if the witness summonses were allowed to stand.
Rehearing
[16] By application dated 11 August 2010 Mr Parlane applied for a rehearing of parts of the prosecution, namely:
a) Identification of the area of applicability of bylaw and placement of the defendant’s vehicle in relation to the area identified in the bylaw;
b) Costs;
c) Specific discovery of: “Copies of plans, drawings and related survey material relating to Anglesea Street, Hamilton outside the Courthouse and the names of the authors of all documents not previously provided to the defendant to date showing their orientation relating to magnetic and true north”.
[17] The Council opposed the application for rehearing and filed a memorandum dated 19 August 2010. The rehearing was declined by Judge Spiller in a minute dated 23 August 2010.
[18] I shall first consider this matter being the “nutshell”, as he described it, of Mr
Parlane’s appeal.
[19] The appellant’s concerns focus around the orientation of Anglesea Street on which the bus lane is marked and the way the relevant bylaw refers to that orientation, namely as “the east side of Anglesea Street”.
[20] The appellant contends it was not proved that the area marked as the bus lane in question is on the east side of Anglesea Street and it was not proved that his vehicle was parked on the east side of Anglesea Street.
[21] In reaching his decision that the alleged offence was proved, the Judge noted that the ticket issued to the appellant recorded his vehicle (and it was not in dispute that the vehicle was the appellant’s vehicle) as having been on the east side of Anglesea Street parked in a special vehicle lane. He also referred to the bylaw restricting a carriageway lane on the east side of Anglesea Street as a bus lane between 4 p.m. and 6 p.m. Monday to Friday.
[22] Mr Parlane did not give or call evidence to challenge the orientation of the road. The evidence of the prosecution witnesses about this matter was therefore uncontested. However, Mr Parlane did extensively cross-examine the prosecution witnesses about this and other matters.
[23] Mr Shaun Peterson, a traffic engineer with the Council, gave evidence about the relevant Council bylaw. He said he was responsible for the implementation of the bus lane in Anglesea Street. In answer to cross-examination he said he verified from a Hamilton City Council map that the bus lane in question was on the east side of Anglesea Street. He said in answer to questions from Mr Parlane:
I verified it with a map.
I do know it’s the eastern side because I’ve checked on a map.
[24] When it was put to him by Mr Parlane that the bus lane would actually be on the north-east not the east side of Anglesea Street, the witness responded: “It’s certainly not the western side”. When Mr Parlane pursued the point with reference to the description in the bylaw and put to Mr Peterson that the wording in the bylaw was wrong, the witness replied: “In my professional opinion, the wording is correct”. He confirmed that he used a map with a north point, not a compass (as Mr Parlane suggested he should have), to establish the orientation of Anglesea Street.
[25] The Judge clearly accepted Mr Peterson’s evidence that the bus lane in which Mr Parlane parked was a bus lane designated by the relevant Council bylaw and that it was on the east side of Anglesea Street. There was no evidence which contradicted or cast doubt on the evidence of Mr Peterson. It was open to the Judge to accept Mr Peterson’s evidence on this point.
[26] Further, I accept the Council’s submission that Schedule E2 of the bylaw is descriptive. It relevantly provides:
E2 BUS LANES Time restricted and operating Monday to Friday
Location
Description
Anglesea
Street
A carriageway lane on the east side of Anglesea Street from the intersection of Knox Street, continuing South to the intersection of Bridge Street. This lane will operate between 4.00pm-6.00pm Monday to Friday
[27] Clause 4 of the bylaw states that the Council makes the bylaw to:
(b)Set aside, designate or reserve any road, part of a road, or any piece of land owned or controlled by the Council and not being a road or part of a road, as:
. . .
(ix) Bus Lanes
[28] Clause 4.3 provides that to give effect to such a matter the Council shall mark the roads and install signs in accordance with the Land Transport Rule: Traffic Control Devices 2004.
[29] Clause 24.1 provides that the road or parts of roads listed in Schedule E2 of the bylaw are “Bus Lanes”.
[30] Schedule E2 sets out the location and description of the bus lanes. The bus lane in issue here is clearly described as a carriageway lane from the intersection of Anglesea Street with Knox Street continuing south to the intersection of Anglesea Street with Bridge Street. There can be no doubt on which side of Anglesea Street the bus lane is located. There are no such intersections on the opposite side of the road. The description east does not add to, detract from or qualify the designation. Even if north-east were a more nuanced compass descriptor (and there is absolutely no evidence that it is), it would not change the clear meaning of the description in Schedule E2.
[31] Further, the bus lane was marked in accordance with clause 24.1 of the bylaw, as the Judge recorded (refer [8] above).
[32] I conclude that the decision reached by the Judge that the appellant, on 15
February 2010 at 4.24 p.m, being a driver or person in charge of a vehicle, did stop, stand or park the vehicle in a lane restricted to a specified class or classes of vehicle without belonging to that class,[8] was open to him. Indeed, on the basis of the evidence that determination was clearly correct.
Bias
[8] At [11].
[33] Mr Parlane’s allegations under these headings are focused on the setting aside by the Court of the witness summonses to the Mayor and Chief Executive. He submits that he ought to have been entitled to examine these witnesses and because he was not able to do so there has been “a substantial miscarriage of justice”.
[34] This is clearly an attempt by Mr Parlane to have this Court review the judgment of Judge Spiller setting aside the witness summonses. The judgment of 2
June 2010 was not appealed and was probably not amenable to appeal. In any event, the Judge’s decision to set aside the witness summonses was clearly correct. These
witnesses who were not versed in the detail of the matters surrounding the infringement notice issued to Mr Parlane, and could not have given relevant evidence. On the other hand, witnesses for the prosecution included Ms Fay Tooman the parking enforcement operations team leader for the Hamilton City Council, Mr Shaun Peterson and Mr Reece Jones, a parking warden who gave direct evidence of the alleged offence and exhibited the infringement machine. Those witnesses addressed all material matters which the appellant sought to have addressed through Messrs Simcock and Redmond and they had the knowledge to give relevant evidence.
[35] In his written points on appeal the appellant suggests that the Judge showed bias in awarding costs in favour of the Council and the Council’s application to set aside the witness summonses. This point is without any merit. As the appellant well knows, costs follow the event. Mr Parlane chose to issue the witness summonses. The Council challenged them. The Court considered both sides of the matter and ruled in favour of the Council. The Council incurred costs in applying to have the witness summonses set aside. They were entitled to be awarded costs, the amount of which was at the discretion of the Judge.
Fair and reasonable defence/witnesses
[36] This point harks back to the setting aside of the witness summonses. The claim is made by the appellant in his written submissions that these witnesses would have been knowledgeable as to the cardinal points of the compass and would have caused the Court to realise that the bylaw and the Land Transport Act:
... were deliberately used in a manner by the Informant to confuse the public at large and also the presiding Judge.
[37] That submission is entirely without merit or foundation. If the appellant had wanted to put evidence about the “cardinal points of the compass” before the Court then it was entirely open to him to call an appropriate witness to give that evidence.
Witnesses were either mistaken or lied in their evidence as to the orientation and the position of the relevant road markings
[38] This point challenges the Judge’s factual findings. The appellant asserts in relation to the orientation of Anglesea Street that the evidence presented was not verified by supporting information and that the witnesses were either mistaken or lied in their evidence. He complains that the witnesses were “evasive and difficult when cross-examined”. He further asserts that the Judge relied on their answers “which were obviously dishonestly given” and in so doing the Judge gave unfair advantage to the Informant.
[39] The Judge saw and heard the witnesses give evidence. Mr Parlane was given full opportunity to cross-examine the witnesses. He did so extensively, pursuing certain points including the orientation of Anglesea Street, in a persistent and often repetitive fashion. It was for the Judge to determine the evidence which he accepted and the evidence he did not. Clearly he accepted the evidence of the prosecution witnesses in reaching the decision he did. It was open to him to do so. There was no contradictory evidence. It is unsurprising and certainly not open to criticism, that he accepted the unchallenged evidence of the prosecution witnesses.
Costs
[40] Mr Parlane complains about the costs that have been awarded against him. He says in respect of the costs on the rehearing ($678) that by seeking a rehearing he was trying to avoid the costs of an appeal and that the Council should have responded reasonably and reviewed the bylaw, which he claims to be defective.
[41] As to the costs in relation to the infringement notice and the defended hearing ($2,309), he says costs should not have been awarded against him because there should not have been a finding of guilt against him. He also complains about the quantum of costs awarded to the Council.
[42] Mr Parlane said in oral submissions that he was “caught” by this bylaw and claimed that the Council “chose to prolong and aggravate the proceeding at every
step”. In my view Mr Parlane misconceives the situation. He was perfectly entitled to defend the prosecution but the way he chose to prepare for and conduct his defence, has inevitably involved the Council in considerable expenditure of time and cost. I reject the assertion made by Mr Parlane in his submissions in reply that the Council has been “profligate, unnecessary and bullying” in relation to the proceeding. The Council has simply done that which was necessary to respond in the situation presented to them.
[43] There is no basis upon which to displace the usual rule that costs follow the event. Nor is there any proper or reasonable basis upon which the quantum of costs should be reassessed. The Judge was well placed to assess the costs claimed by the Council. I note that he did not allow extra costs claimed in relation to the witness summonses.
Result
[44] The appeal is without merit and is dismissed. The orders made by Judge
Spiller in his judgments of 4 June 2010 and 17 August 2010 are confirmed.
Costs on appeal
[45] The Council is entitled to costs on the appeal. I am advised that under the Costs in Criminal Cases Act and Regulations the amount is $226. The Council asks the Court to exercise its discretion to award costs on a 2B basis under the High Court Rules. While I accept that this matter has been time consuming and costly for the Council, as was reflected, at least in part, by the costs awarded by Judge Spiller on
17 August 2010, I do not consider that the nature or conduct of the appeal justifies costs above scale. The appellant is ordered to pay costs of $226.
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