Prescott v Auckland Transport

[2013] NZHC 1116

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-1891 [2013] NZHC 1116

BETWEEN  PETER RICHARD PRESCOTT Appellant

ANDAUCKLAND TRANSPORT Respondent

Hearing:         13 May 2013

Appearances: Appellant in person

S S Masoud-Ansari for respondent

Judgment:      16 May 2013

JUDGMENT NO.2 OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 2.30 pm on Thursday 16 May 2013

Solicitors/Party:

P R Prescott, Auckland [email protected]

Simpson Grierson, Auckland [email protected]

PRESCOTT V AUCKLAND TRANSPORT HC AK CRI-2012-404-1891 [16 May 2013]

[1]      At all material times, Mr Prescott owned a Nissan utility motor vehicle.  On various dates between June and September 2011, the vehicle was found by parking officers employed by the respondent, parked on a public street, but without any sufficient evidence of vehicle registration or inspection.  Infringement notices were issued.   Mr Prescott gave notice of his desire to have the matter dealt with in the District Court.  There, he argued that the vehicle carried trade plates which absolved him of any obligation to comply with the various statutory and regulatory provisions upon which the infringement notices were based.

[2]      His  defence  was  rejected  by  the  Justices  of  the  Peace,  who  found  that Mr Prescott had committed the offences set out in the infringement notices, although some notices were withdrawn by leave.

[3]      Mr Prescott appealed to this Court.  In a judgment delivered on 11 October

2012, I dismissed his appeal.1   I also made an order directing Mr Prescott to pay to the respondent costs in the sum of $500.

[4]      Mr Prescott now seeks leave to appeal to the Court of Appeal.   His initial application for leave to appeal ran to 33 pages and comprised 264 paragraphs.  An amended application dated 17 December 2012 was limited to 17 pages incorporating

64 paragraphs.  This application was much more narrowly focused and appeared to grapple, at least for the most part, with the issues upon which my judgment was based.

[5]      At the hearing of the appeal, Mr Prescott handed up a further synopsis of argument which regrettably raised afresh certain issues omitted from his second application, but included in the first.  Some of these matters had been the subject of argument at the hearing of the appeal, but were not included in my judgment because I had understood that Mr Prescott accepted that they could not possibly succeed.  In

one or two instances, the issues omitted from the amended application but addressed

1 Prescott v Auckland Transport [2012] NZHC 2637.

by Mr Prescott on the present application for leave were not raised at all during the hearing of the appeal.

[6]      I propose to deal first with the law relating to the grant of leave to appeal to the Court of Appeal.  I will then deal with the grounds for my earlier judgment, and with Mr Prescott’s argument in respect of those grounds.  Finally (and briefly) I will address some other matters he has raised.

Leave to appeal

[7]     The decision of this Court on any general appeal under the Summary Proceedings Act 1957 (the Act) is final, save where it is appropriate to grant leave to the Court of Appeal.2    Before granting leave this Court must be satisfied that the threshold test in s 144 of the Act has been met.  The leading case in respect of the granting of leave is that of the Court of Appeal in R v Slater.3  An applicant for leave to appeal must establish that:

(a)       the proposed appeal raises a question of law;

(b)which by reason of its general or public importance or any other reason, ought to be submitted to the Court of Appeal;  and

(c)       this  Court  in  its  discretion  should  order  that  it  ought  to  be  so submitted.

[8]      Section  144  was  not  intended  to  provide  a  second  tier  of  appeals  from decisions of the District Court.  The grant of leave is reserved for questions of law of sufficient importance and apparent merit, to justify the grant of leave.   Otherwise, proceedings under the Act conclude with the judgment of this Court.

Grounds for High Court judgment

[9]      Mr Prescott had been driving his vehicle in reliance upon trade plates rather than ordinary registration plates.   He contended that the use of the trade plates constituted an exemption from the registration and licensing requirements which might otherwise rest upon him.  But the trade plates were not fixed to the outside of the vehicle.  Rather, they rested (at least at night) on the dashboard in a position from which they could be seen by any person looking into the vehicle through the windscreen.

[10]     I found that:

(a)      Mr Prescott had not affixed the plates to the rear of the vehicle as required by reg 42 of the Land Transport (Motor Vehicle Registration and Licensing) Regulations 2011;

(b)In any event, the act of leaving the vehicle unattended on a public street at night was not a use authorised by the issue of a trade plate, in that it was not one of the purposes authorised by r 10.4 of the Land Transport Rules: Vehicle Standards Compliance 2002.

[11]     I  therefore  upheld  the  decision  of  the  Justices  of  the  Peace  who  found Mr Prescott   had   infringed   the   regulatory   provisions   that   underpinned   the infringement notices.

Mr Prescott’s relevant arguments

[12]     I deal first with Mr Prescott’s failure to affix the trade plates to the rear of his vehicle.  This was an offence of strict liability.  In such cases, it may be open for the defendant to show that he acted under a relevant mistake of fact, or that he exercised all due diligence.   But the former defence is not available in proceedings where neither intention nor knowledge nor subjective recklessness is an ingredient of the

offence.4   Where either defence is available, then the party seeking to rely on it must establish the defence on the balance of probabilities.5

[13]     These  defences  were  not  explicitly  raised  on  the  hearing  of  the  appeal. Rather, Mr Prescott asserted that he had complied with the law.  But assuming for present purposes that both defences were available, they were not made out in this case.

[14]     Mr Prescott’s evidence was that on one prior occasion his registration plates had  been  stolen  from  his  vehicle.    Upon  making  inquiries  of  the  police,  he ascertained that the theft of registration plates was a serious problem in this country. He then set about endeavouring to devise a method of securing the registration plates more securely to his vehicle.  He argued that in making the plates available to any inspecting authority through the windscreen, he was both complying in substance with the regulations, and at the same time avoiding a greater public evil, namely the possibility of the theft of the plates by those who may wish to use them for criminal activity.  He argued that these considerations provide a proper excuse for his failure to fix the plates to the outside of the vehicle at night.

[15]     In my opinion, this argument is plainly untenable.  If it is correct, then any citizen who knows of the problem of registration plate theft (which is widespread), would be entitled to ignore the provisions of reg 42 and drive about with no registration plate visible from the rear of the vehicle.

[16]     Mr Prescott’s vehicle was seen on five separate occasions between mid-June and late September 2011.  There is no proper basis for his contention that he was justified in permitting his vehicle to stand without a rear registration plate each night over a period of more than three months, simply on the ground that on one previous occasion the plates had been stolen.  Assuming the defences were available to him, he has not established either of them.   Moreover, the question of whether he has made out a defence is entirely dependent on the assessment of matters of fact and is not a suitable topic for the grant of leave to appeal.

[17]     Mr Prescott’s second argument is simpler.  Trade plates may be used for the

following purposes:

(a)       Demonstration of a vehicle; (b) Delivery of a vehicle;

(c)       Completion of construction of a vehicle;

(d)Road   testing   of   a   vehicle   in   connection   with   inspection   and certification;  and

(e)       Evaluation or testing of a vehicle.

[18]     In JPN Ltd v Rotorua District Council, Woodhouse J held that leaving a vehicle unattended on a public street at night did not bring the case within any of the authorised uses which could give rise to an exemption from ordinary licensing and registration requirements.6     I agreed.   There is nothing in reg 10.4 to support the contention that a vehicle may be left parked on a public street all night bearing trade plates.  A vehicle that is parked for that period is not being used for any of the uses

permitted by reg 10.4.

[19]     Mr Prescott argued that there is no express prohibition against parking the vehicle overnight, and that therefore the activity must be lawful.  I considered that he had  misunderstood  the  effect  of  reg 10.4  which, by stipulating  a closed  list  of permitted uses, prohibits in effect the use of trade plates for any other purpose.  The Legislature plainly intended that a vehicle bearing trade plates could, while under repair or modification, be road tested and evaluated, but that it must be parked off the road when stationary.

[20]     The language and purpose of reg 10.4 is quite clear.  Mr Prescott’s argument to the contrary has no prospect of success in the Court of Appeal and it is not appropriate therefore to grant leave to appeal.

Other matters

[21]     I deal briefly with some other matters raised by Mr Prescott in his synopsis of argument.  First he complains of bias both before the Justices of the Peace and by me. So far as the Justices of the Peace are concerned, it is sufficient to reproduce a paragraph from Mr Prescott’s synopsis:

The JPs decision to accept the Respondent’s witness testimony over the presumed innocence of the Applicant and his sworn testimony along with the affidavits sworn by two witnesses was unacceptable bias.

[22]     In other words, Mr Prescott’s bias complaint stems simply from the fact that

the Justices held on the evidence that the respondent had proved its case.

[23]     Alleged bias on my part appears to arise from my comment that it must be open to serious doubt whether a trade plate may be used for the purpose of extensive evaluation and testing over a long period.  My comments to that effect were made only in passing and were therefore obiter, but Mr Prescott argues that the expression of that view amounts to bias on my part, and that on that ground alone leave ought to be granted to appeal to the Court of Appeal.

[24]     He relies further in support of his bias argument, on the following passage in my judgment:7

There was no indication from Mr Prescott that he will register the vehicle and obtain a warrant of fitness in the ordinary way within the foreseeable future.

[25]     Mr Prescott says that:

There was no evidence to support [my] wild claim …

[26]     The Court is now advised that the vehicle had in fact been repaired and sold by 4 September 2012, two weeks before the appeal hearing.

[27]     That  may  be,  but  the  fact  remains  that  there  was  no  indication  from

Mr Prescott at the appeal hearing as to when he would register the vehicle and obtain

a warrant of fitness in the ordinary way.  He contends that the fact that I did not ask him whether the vehicle had been sold was an indication that I had:

… brought a biased mind to the appeal hearing.

[28]     There is absolutely nothing in these allegations of bias.   Bias in judicial officers is a very serious matter.  Bias claims ought not to be made without careful consideration.  It is one thing for a judge to have misconstrued the evidence or the law, or to be simply wrong.  It is quite a different thing for a judge to be accused of lack of partiality.

[29]     The next point Mr Prescott raised concerns the Bills of Exchange Act 1908. He says in his synopsis:

The infringement notices were handled under the Bills of Exchange Act

1908 and the High Court showed bias when it did not recognise the ruling of the Court of Appeal and apply that ruling to the case in hand which gives

grounds to grant leave to appeal to the Court of Appeal under a question of

law.  (International Ore and Fertiliser v East Coast Fertiliser Co Ltd).

[30]     Mr Prescott  has  appeared  before  me  on  several  occasions  in  the  past  in relation to alleged traffic infringements.   He has raised his Bills of Exchange argument  on  most  of those  occasions.    I have  rejected it  out  of hand  and  had understood from him that he realised that the provisions of the Bills of Exchange Act have no application to criminal offences and in particular, have nothing to do with the infringement notice procedure.   He dropped the argument out of his amended application for leave, but restored it for the purposes of the actual hearing.  Not only does Mr Prescott submit that my failure to apply the Bills of Exchange Act to the present case amounts to an error of law which ought to be the subject of a grant of leave, he also suggests that my failure to recognise the applicability of the Act shows bias on my part.

[31]     His submission in that respect is quite improper.  His Bills of Exchange Act argument is risible.   His failure to accept that and to allege bias on my part for rejecting the argument cannot possibly form an appropriate ground for the grant of leave to appeal.

[32]     Mr Prescott makes a further complaint in respect of the respondent’s alleged failure to supply evidence formally requested by him.  He did not address that point at the hearing of the application for leave to appeal.   It is impossible to give any credence to an argument which rests upon mere assertion.

[33]     His final point is completely new.   He says that the respondent failed to inform him under s 20A(3)(d) of the Act of the totality of his rights.   There has therefore been a violation of his rights under ss 24(d) and 27(1) of the New Zealand Bill of Rights Act 1990, he claims.

[34]     Section  20A(3)(d)  requires  that  a  notice  of  prosecution  must  inform  a defendant of his or her right under s 106 of the Sentencing Act 2002 to be discharged without conviction.  Ms Masoud-Ansari accepts that the relevant notices in this case did not comply with that requirement.  In certain circumstances that may have raised an important issue, but it is of no significance in the present case, because the offences which the Justices of the Peace found proved against Mr Prescott did not

and could not result in the entry of convictions.8   It follows that a discharge without

conviction  was  not  available,  because  Mr Prescott  was  never  in  jeopardy  of conviction for any of these offences.

Result

[35]     For the foregoing reasons I am satisfied that it is not appropriate to grant Mr Prescott leave to appeal to the Court of Appeal.  His application is accordingly dismissed.

Costs

[36]     In  my  earlier  judgment  I  awarded  the  respondent  costs  of  $500  against

Mr Prescott.   That was more than twice the applicable scale.   Ms Masoud-Ansari seeks a further order for costs on the application for leave.

8 Summary Proceedings Act 1957, s 78A, which prohibits the entry of a conviction for an infringement offence..

[37]     Failed applications for leave to appeal to the Court of Appeal are routinely accompanied  by  an  award  of  costs  in  favour  of  the  successful  party.    Here, Mr Prescott has put the respondent to very considerable additional work by changing his grounds.   His first application for leave was extremely extensive.   His second was much more limited, but at the hearing itself he endeavoured to revive matters apparently abandoned.  Moreover, certain of the issues he raised (such as bias and the alleged role of the Bills of Exchange Act) were completely untenable and ought never to have been raised. They put the respondent to significant additional cost.

[38]     It is particularly important to note that Mr Prescott’s amended application was filed after the original application had been set down for hearing, and after the respondent had filed submissions in response to his original application.  I directed the respondent to file additional focused submissions, dealing solely with the matters raised in Mr Prescott’s second application.

[39]     In  my  view,  it  is  appropriate  to  make  a  further  order  for  costs  in  the respondent’s favour.  Accordingly, there will be a further order for costs in the sum of $500, which exceeds scale but is justified by the way in which Mr Prescott has approached this application for leave to appeal.

C J Allan J