Police v W HC Gisborne Cri-2009-416-31
[2010] NZHC 292
•8 March 2010
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
CRI-2009-416-000031
IN THE MATTER OF an appeal from a determination of the
District Court at Wairoa
BETWEEN NEW ZEALAND POLICE Appellant
ANDW
Respondent
Hearing: 8 March 2010 (Heard at Napier)
Appearances: Fiona Cleary for Appellant
Gregory Calver for Respondent
Judgment: 8 March 2010
JUDGMENT OF HARRISON J
SOLICITORS
Elvidge & Partners (Napier) for Appellant
Gresson Grayson (Hastings) for Respondent
COUNSEL GW Calver
POLICE V W HC GIS CRI-2009-416-000031 8 March 2010
[1] This appeal by way of case stated from a decision in the District Court at Wairoa is said to raise an important question of law relating to the power to impose certain conditions in limited licences granted to disqualified drivers.
[2] The question stated for the determination of this Court is:
Does the District Court have ... authority under the Land Transport Act 1998 to impose conditions [such as], i.e. that the applicant shall not exceed any posted speed limit, on orders authorising limited licences?
[3] The question is discrete. It does not raise any difficult issues of statutory construction. Having heard argument from both counsel this morning, I am now in a position to give judgment orally.
Facts
[4] The agreed facts, correctly recorded in the case stated settled by Judge
Adeane, are as follows:
(1)[Mr W ] is a driver employed by Stephenson Transport Ltd, a rural transport company based in Waipawa.
(2)On 8 January 2009 [Mr W 's] driver licence was suspended for a period of three months due to [Mr W ] having exceeded
100 demerit points, for speeding offences.
(3)The Hastings District Court subsequently granted an order authorising the issue of a limited licence to [Mr W ] which allowed him to drive in the course of his employment.
(4) The terms of the licence are set out as follows:
Licence
1. A licence to drive (licence endorsement Class 1) a GXR
600 motorcycle registered number 86WYD to and from
[Mr W 's] home at 32 Guys Road, Waipawa and his place of work at Stephenson Transport, 41 Ruataniwha
Street, Waipawa.
2. The above licence to operate along the following route and at the following times:
(1) Guys Street, Bilby Street, Victoria Street, High
Street, Ruataniwha Street and vice versa;
(2) 15 minutes prior to a shift starting and 15 minutes after a shift finishes.
3. A licence to drive stock truck and trailer units operated by his employer Stephenson Transport which are painted in Stephenson Transport livery of green, red and white and signwritten (licence endorsement Classes 2 to 5) in the course of his employment with Stephenson Transport.
4. The above licence to operate in the following areas and times -
(i) in the North Island as far north as Auckland, east to the Bay of Plenty, west to New Plymouth, and south to Wellington;
(ii) in accordance with the driving hour regime set out in the Land Transport Act 1998.
Conditions of Licence
5. [Mr W ] is to carry a sealed copy of this order with him and is to inform any police officer stopping him while driving that he is a disqualified driver.
6. [Mr W ] is to carry a logbook showing all details required by s 30ZF of the Land Transport Act.
7. [Mr W ] is to carry a logbook in his private vehicle recording the same details as in clause 6 above for every journey he makes to and from his place of work in that vehicle.
8. [Mr W ] shall not exceed any posted speed limit.
9. During the period of this licence, if [Mr W ] is convicted of a further speeding offence this limited licence will terminate.
(5) On Tuesday, 19 March 2009 [Mr W ] was checked driving at
105 kph on SH2 at Waihua. The speed limit for a heavy motor vehicle on that road is 90 kph. The posted speed limit is 100 kph.
(6)[Mr W ] was stopped and he produced his limited licence to the officer who stopped him.
(7) [Mr W ] subsequently paid his speeding fine.
(8)At the time of the speeding offence [Mr W ] was driving a vehicle belonging to his employer Stephenson Transport. He was within his driving hours and he was driving within the area dictated by his limited licence.
[5] Mr W was charged with driving a motor vehicle on State Highway 2 contrary to a limited licence: ss 32(1)(b) and 32(3) Land Transport Act 1998 (all subsequent statutory references are to that enactment). Mr W defended the charge. Mr Calver, who appeared for him in the District Court and on appeal, advises that Judge Adeane himself raised a jurisdictional issue based on s 105, which materially provides:
(1)A court may at any time make an order under this section authorising the applicant to obtain, immediately or after the expiration of such period as the court may specify, a driver licence (“a limited licence”) authorising the applicant to drive to such extent (being the least extent that it is necessary to alleviate extreme or undue hardship) as the court specifies in the order.
(2) The court may make an order under this section if satisfied that—
(a)the disqualification or suspension has resulted or will result in—
(i) extreme hardship to the applicant (whether in relation to employment or otherwise); or
(ii) undue hardship to a person other than the applicant
(whether in relation to employment or otherwise);
and
(b)an order under this section is not contrary to the interests of public safety.
(3)In making an order under this section, the court— (a) must specify—
(i) the purpose for which the limited licence is issued;
and
(ii) the particular vehicle or the type of vehicle which may be driven; and
(iii) the days of the week and times at which that vehicle may be driven; and
(iv) such other matters as may be necessary to limit the order to alleviating the hardship which was alleged
and proved; and
(b) may specify in the order such other matters as the court thinks fit.
[6] The two relevant conditions of the limited licence upon which the Judge focused were as follows:
8. [Mr W ] shall not exceed any posted speed limit.
9.During the period of this licence, if [Mr W ] is convicted of a further speeding offence this limited licence will terminate.
[2] ... The Land Transport Act makes provision for limited licences with conditions to define the scope of the exemption from disqualification. This is a different condition - apparently, added on what can only be thought to be
'public safety' grounds.
[3] I note that conditions of this kind are frequently volunteered by counsel for applicants applying for licences. But there has been a longstanding, albeit modest, line of authority to the effect that any further conditions under a work licence must be read ejusdem generis with those conditions which relate to the scope of the licence.
[4] There has been discussion in some of the earlier cases that conditions are too vague. But in my view, the real point is that the conditions are imposed without statutory authority (as correctly interpreted). The operative legislation has changed but the submission for the Informant is that though the effect of the law remains the same, the earlier cases ought to be distinguished: see Brown v MOT [1988] DCR [352], Judge Willy; Police v Nicolls, a reference in Becroft Law of Transportation.
[5] In all the circumstances, and for the reasons variously expressed by other District Court Judges over the last 20 years, I apply the same approach to this matter. The condition in Mr W 's licence, however specific it might be, is outside the type of conditions which Parliament intended to empower the Courts to impose. To construe otherwise of course would mean that the most minor breach of speed limit, even one giving absolutely no rise to any question of public safety, would nevertheless bring about the draconian consequence that an otherwise deserved work licence was lost. Parliament cannot have intended that. For that reason the information is dismissed.
Decision
[8] A good deal of written argument from both counsel on appeal was directed to the application of what is known as the ejusdem generis principle of construction. In summary, as Mr Calver submits, the principle mandates that where particular words are followed by general words in a statutory provision, the general words are to be read as limited to the same kind as the particular words. Accordingly, Mr Calver submits that what is an apparently unfettered discretion to "specify such other matters as the Court thinks fit" (s 105(3)(b)) reflects Parliament's intention that "other matters" should relate directly to and derive from the four preceding mandatory factors (s 105(3)(a)). Ms Cleary broadly accepts that the principle applies and any conditions imposed under the broad discretionary power must be of the
same kind as the mandatory conditions. She submits, though, that conditions 8 and 9 are within that category.
[9] I have not found this approach helpful. In my judgment the result must be dictated by the plain words and structure of the section. The first stage vests the Court with a discretionary power to grant a limited licence to "the least extent that is necessary to alleviate extreme or undue hardship": s 105(1). The second stage provides a jurisdictional threshold for invoking that power; the Court must be satisfied that the order for disqualification, from which the applicant seeks an exemption, "has resulted or will result in extreme hardship" and "is not contrary to the interests of public safety": s 105(2). That latter requirement is central to this appeal.
[10] Once the Court is satisfied on jurisdiction, and decides to exercise its discretion to issue a limited licence, it must specify in the order four particular terms or conditions - the purpose of the licence, the subject vehicle, the days and times for driving, and any other matter necessary "to limit the order to alleviating the hardship which was alleged and proved": s 105(3). This last provision serves to emphasise the Court's obligation to take whatever additional steps are necessary to restrict the scope of the limited licence to the bare minimum appropriate to alleviate hardship: s 105(3)(a)(iv).
[11] These four mandatory requirements are discrete or self-contained. All have the same effect of limiting purpose, time, place and vehicle. But the separate power to specify "such other matters" is fettered only by the obvious limitation that it be exercised for a statutory purpose. Accordingly any additional matters specified in the limited licence order must relate to "the interests of public safety". The manner of driving and condition of the driver fall obviously within that category.
[12] Mr W lost his licence by incurring the minimum number of demerit points as a result of consistent driving at excessive speeds. Parliament deemed that driving in such a manner constituted an unacceptable risk to road safety. Disqualification was the appropriate sanction, both as a deterrent and to protect other road users.
[13] However, that same risk to public safety would remain undiminished if Mr W exceeded the speed limit while driving under a limited licence. Such a licence is an indulgence; a statutory exemption from what would otherwise be an absolute prohibition. In my judgment it was entirely lawful for the Court to impose a condition within a limited licence order requiring Mr W to drive under his limited licence at all times within the posted speed limit. I can only infer that the District Court Judge who made the limited licence order was so satisfied. As the prosecutor correctly submitted in argument before Judge Adeane, this condition related directly to the manner of Mr W 's driving which was the very reason for his disqualification.
[14] An analogous situation was discussed in argument on appeal. The example was raised of a person who, for example, has accumulated two or more breath alcohol offences but wishes to apply for a limited licence. Mr Calver, who has extensive experience in this area, acknowledges that when drafting applications in such situations he has volunteered and the Court has imposed a condition prohibiting the applicant from driving a vehicle with more than a nil breath alcohol level. He accepts that such a condition, while appearing extreme by barring something that is not of itself unlawful, is in the interests of road safety because it prohibits somebody from consuming any alcohol when driving is in contemplation and running the risk of repeating the conduct which led to the original disqualification. Mr Calver was unable to identify a principled basis for distinguishing that condition from Mr W 's case.
[15] Conditions 8 and 9 of this licence operated to remind Mr W that the licence was an indulgence and that he must not abuse it by driving at an excessive speed. The sanction of termination in the event that he breached this condition was appropriate and lawful in the interests of road safety. It is not to be forgotten that Mr W 's discrete offence was not trifling. He was driving a heavy motor vehicle. The speed limit was 90 kph (the posted speed limit was 100 kph). He exceeded the lawful limit by some 15 kph.
[16] Accordingly, I answer the question formulated for determination in the
affirmative.
Rhys Harrison J
0
0
1