Prescott v Auckland Transport
[2012] NZHC 2637
•11 October 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2012-404-191 [2012] NZHC 2637
BETWEEN PETER RICHARD PRESCOTT Appellant
ANDAUCKLAND TRANSPORT Respondent
Hearing: 17 September 2012
Appearances: Appellant on person
N R Miller for respondent
Judgment: 11 October 2012
JUDGMENT OF ALLAN J
This judgment was delivered by me on 11 October 2012 at 12:00md
pursuant to Rule 11.5 of the High Court Rules.
...................................
Registrar/Deputy Registrar
Solicitors/party:
P R Prescott, Auckland [email protected]
Simpson Grierson, Auckland [email protected]
PRESCOTT V AUCKLAND TRANSPORT HC AK CRI 2012-404-191 [11 October 2012]
[1] Mr Prescott appeals from a decision of Justices of the Peace sitting in the Auckland District Court, dated 11 June 2012, in which 10 out of 13 alleged infringement offences were found to have been proved.
[2] The typed reserved decision of the Justices is dated 11 June 2012, but the Registrar’s handwritten note indicates that the judgment was delivered pursuant to s 68(3) of the Summary Proceedings Act 1957 on 7 June 2012. Nothing turns on that discrepancy.
Background
[3] Mr Prescott owns a Nissan Utility motor vehicle which is the subject of all of these alleged infringement offences. He purchased the vehicle through Turners Auctions on 10 May 2011. The invoice for the purchase indicates that the vehicle was deregistered and was being sold for parts only. Nevertheless, at all material times, the vehicle carried a rear registration plate CDJ784. That seems to have been because the plates was rusted onto the rear of the vehicle and could not be removed.
[4] The infringement offences were alleged to have occurred on 13 June, 8 July,
6 August, 8 September and 29 September 2011. On these occasions, 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. Photographic evidence was produced by the respondent’s witnesses in respect of each occasion. The photographs relating to 29 September 2011 were of poor quality. The reserved decision of the Justices records the three infringement notices relating to that date as having been withdrawn by leave. Mr Prescott does not challenge that outcome.
[5] The central thrust of Mr Prescott’s defence in the District Court, and his argument on appeal, was that at all material times the vehicle carried trade plates which absolved him of any obligation to comply with the various statutory and regulatory provisions upon which these infringement notices are based.
The law
[6] The infringement notices of the alleged offences fall into three separate groups.
Failure to display current evidence of vehicle inspection
[7] The first is concerned with an alleged failure to display current evidence of vehicle inspection. A person commits an offence under s 6 of the Land Transport Act
1998 (LTA) if that person operates a vehicle on a road without displaying current evidence of vehicle inspection.1
[8] Evidence of a vehicle inspection will ordinarily take the form of a warrant of fitness. There is an exemption from the requirement to display a current warrant of fitness under r 10.2(3) of the Land Transport Rules: Vehicle Standards Compliance
2002 (the Rules). here a conditional permit has been issued, the permit is carried in the vehicle, and the vehicle is being operated in accordance with certain stipulated rules.2
[9] Rules 10.3 and 10.4 are of relevance in this case. Rule 10.3 provides:
10.3 Operation on annex B or annex C conditional permits
10.3(1) A person may not operate a vehicle before it enters or re- enters service on an annex B conditional permit unless:
(a) the vehicle's operator has fitted a valid trade plate to the vehicle; and
(b) the vehicle is being operated solely for one or more of the purposes in 10.4; and
(c) the distance travelled is not more than 50 km from a location specified by the Agency by notice in the Gazette, in relation to an annex A form.
1 Land Transport Act 1993, s 34(1)(b); Land Transport (Offences and Penalties) Regulations 1999, reg 4(1), (The Regulations); together with Schedule 1 of the Regulations. An offence against s 34(1)(b) of the LTA is a strict liability offence. The infringement fee payable for an offence against the subsection is $200.
2 See rr 9.4 and 10.2(3) of the Rules.
10.3(2) A person may not operate a vehicle before it enters or re- enters service on an annex C conditional permit unless:
(a) the vehicle's operator has fitted a valid trade plate to the vehicle; and
(b) the vehicle is being operated solely for one or more of the purposes in 10.4.
[10] Rule 10.4 sets out the purposes for which a conditional permit may be used. They are:
(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.
Using an unlicensed vehicle
[11] The second group of alleged infringement offences is concerned with instances of causing or permitting a vehicle to be on a road if the vehicle is not registered and licensed in accordance with Part 17 of the LTA.3
[12] Section 242(1) of the LTA provides that a vehicle must not be operated on a road unless the vehicle:
(a) is licensed in accordance with Part 17 of the Act; and
3 See regs 77(2)(a) and 93 of the Land Transport (Motor Vehicle Registration and Licensing) Regulations 2011(the Registration Regulations) and s 242(1) of the LTA. An offence against reg
77(2)(a) carries an infringement fee of $200 or on summary conviction a fine not exceeding $1000.
(b)has affixed to it and displayed in the manner prescribed by the regulations made under Part 17, a current licence issued for the vehicle and appropriate for its use under s 244.
[13] The fact that a motor vehicle is operated without having a valid licence affixed to and displayed on it in accordance with the Registration Regulations is, in the absence of evidence to the contrary, sufficient evidence that the motor vehicle is not licensed in accordance with Part 17 of the Act.4
[14] A defence is available if it can be shown in the District Court that:
(a) The vehicle concerned was only operated on a road while being taken directly to a place of, and for the purpose of, inspection, servicing, repair, or obtaining evidence of vehicle inspection; or
(b)In the case of the obligation to affix and display a current licence, the motor vehicle was not required to be licensed.5
Using an unregistered vehicle
[15] The third group of infringement offences is concerned with an alleged failure to display current registration plates on the vehicle. A person commits a stationary vehicle offence if that person operates a motor vehicle in contravention of s 242(1) of the LTA by causing or permitting the vehicle to be on a road, if the vehicle does not have affixed to it and displayed in the manner prescribed by the of the Land Transport (Motor Vehicle registration and licensing) Regulations 2011, (the
Registration Regulations) the registration plates issued for that vehicle.6
[16] An offence against reg 77(2)(b)(i) of the Registration Regulations carries an infringement fee of $200, or on summary conviction, a fine not exceeding $1000.
4 Registration Regulations, reg 91(2).
5 Registration Regulations, regs 77(4)(a) and 77(5).
6 Registration Regulations, regs 77(2)(b) and (93).
[17] Regulation 39 of the Registration Regulations makes provision for the method of display of registration plates. It provides that
1 plate must be displayed on the front of the motor vehicle and 1 plate must be displayed on the rear of the motor vehicle … so that the unique identifier on the plate is easily visible at all times –
(a) in the case of the front plate, from the front of the motor vehicle; (b) in the case of the rear plate, from the rear of the motor vehicle.
[18] It will be a defence in proceedings for an offence against reg 77(2)(b)(i) if the defendant can show that the vehicle was not required to be registered.7
Trade plates
[19] The appellant argues that no infringement offences were committed in this case because at all material times the vehicle was carrying trade plates.
[20] Section 262(3) of the LTA provides that trade plates must be issued and used in accordance with any regulations made under Part 4 of the Registration Regulations pursuant to reg 26, provided the conditions in 26(2) are met. A person to whom a trade plate is issued under reg 25 may operate a vehicle, even though the vehicle:
(a) is not registered or licensed under Part 17 of the LTA; and/or
(b) does not have affixed to it registration plates or a current licence. [21] In order to attract the reg 26 exemption:
(a) The vehicle must be operated only for a purpose for which the person is eligible to apply for and receive trade plates
(b) At all times while the motor vehicle is being operated –
(i)the trade plate must be displayed in the manner described in reg 42; and
(ii)the person must comply with any other conditions on the use of trade plates imposed by the Registrar.
[22] The purposes for which a person is eligible to apply for and receive trade plates are set out above.8
[23] Of fundamental importance in this case are the provisions of reg 42 which prescribe the manner in which trade plates must be displayed.
[24] Regulation 42 provides:
Trade plates, when used on a motor vehicle, must be securely affixed on the rear and, at the discretion of the Registrar, on the front of the motor vehicle in an upright position and displayed so that the unique identifier is easily visible at all times from the rear of the motor vehicle and (in the case of a front-mounted plate) from the front of the motor vehicle.
[25] The appellant’s principal submission is that trade plates were carried on the vehicle at all relevant times, and that the case accordingly falls within reg 26 which exempts from the registration and licensing requirements imposed under Part 17 of the LTA a vehicle carrying a trade plate issued under that regulation.
[26] The evidence of the various parking wardens largely accords with that of Mr Prescott himself. In my view, the undisputed evidence does not afford Mr Prescott a defence. A trade plate was displayed on the dashboard of the vehicle and was visible through the windscreen, but it was not securely affixed to the rear of the vehicle, and it was not displayed so that the unique identifier was easily visible at all times from the rear of the vehicle. Accordingly, the plate did not comply with the requirements of reg 42. The vehicle did not therefore qualify for exemption by virtue of reg 26. In other words, the mere display of the trade plate on the dashboard did not afford a defence to the offences with which the appellant was charged.
[27] In my view, the appellant also faces another quite separate difficulty. A vehicle carrying a trade plate may be used only for a purpose for which a person is eligible to apply for and receive trade plates.9 Here, Mr Prescott relies on r 10.4(e) which permits a trade plate to be used for the purpose of evaluating or testing a vehicle. Where a car is parked unattended in the street (as occurred on each separate occasion in this case), the reasonable inference to be drawn from that fact is that the vehicle is not being used for the purpose for which the trade plate was obtained.10
[28] It was for Mr Prescott, on the balance of probabilities, to show that the vehicle was being used for one of the range of available purposes when it was inspected by the respondent’s officers.11 Mr Prescott’s position was that he was evaluating and testing the vehicle during the daytime, but that at night it was simply left on the street unattended. The plate was not affixed to the rear of the vehicle because another trade plate had earlier been stolen. Accordingly, the plate was
displayed on the dashboard where it was safer.
[29] The inference to be drawn from Mr Prescott’s evidence is that the evaluation and testing of this vehicle was being conducted over an extended period. It must be open to serious doubt whether a trade plate may be used in that way. The obvious intention of the legislation is to permit a vehicle to utilise trade plates while being driven for the purpose of evaluating it for possible acquisition, or alternatively for testing following repair or modification.
[30] Be that as it may, I agree with Woodhouse J in the JPN case, that leaving a vehicle unattended on a public street at night does not bring the case within any of the authorised uses which can give rise to an exemption from ordinary licensing and registration requirements.
[31] It follows that the Justices were correct to find the infringement offences proved. However, in deference to the appellant’s detailed argument on appeal, I deal
briefly with a number of further matters.
9 Rule 10.4.
10 JPN Ltd v Rotorua District Council HC Auckland CRI-2010-463-38, 7 February 2011 at [17].
11 Prescott v Police HC Auckland CRI-2005-404-082, 4 July 2005 at [13].
Additional arguments
[32] Mr Prescott argues that even if the Court should find that the trade plate was not properly affixed and was therefore non-complying, it does not follow that the remaining licensing and registration offences have been made out. I do not accept that argument. If:
(a) the trade plate had been fixed in accordance with reg 42; and
(b)the vehicle was being used at the relevant times for a qualifying purpose
then the appellant would have been exempt from the licensing and regulation obligations which underpin the other charges against him. But he is not so exempt. The scheme of the legislation is such that a person in Mr Prescott’s position is liable to face a range of infringement allegations, as occurred in this case.
[33] Mr Prescott is concerned also about the state of the evidence given by certain parking officers in the District Court. Some of those witnesses gave evidence to the effect that they did not see any trade plate on the dashboard. The Justices preferred the evidence of those witnesses to that of Mr Prescott and to deponents who supported him in writing (but not in person). The discrepancy does not matter. I have proceeded on the basis that there was at all material times a trade plate on the dashboard. However, that is insufficient for Mr Prescott’s purposes.
[34] The appellant also argues that as a good and responsible citizen he took the practical step of displaying the trade plate on the dashboard and locking the vehicle in order to prevent theft of the plate during the night. He says that a previous trade plate had been stolen. He argues that to be a sufficient compliance with the requirements of reg 42, and in that respect relies upon the provisions of ss 53 and
107 of the Crimes Act 1961, which respectively provide:
53 Defence of movable property with claim of right
(1) Every one in peaceable possession of any movable thing under a claim of right, and every one acting under his authority, is protected
from criminal responsibility for defending his possession by the use of reasonable force, even against a person entitled by law to possession, if he does not strike or do bodily harm to the other person.
107 Contravention of statute
(1) Every one is liable to imprisonment for a term not exceeding one year who, without lawful excuse, contravenes any enactment by wilfully doing any act which it forbids, or by wilfully omitting to do any act which it requires to be done, unless—
(a) Some penalty or punishment is expressly provided by law in respect of such contravention as aforesaid; or
(b) In the case of any such contravention in respect of which no penalty or punishment is so provided, the act forbidden or required to be done is solely of an administrative or a ministerial or procedural nature, or it is otherwise inconsistent with the intent and object of the enactment, or with its context, that the contravention should be regarded as an offence.
[35] Neither of these provisions is relevant in the circumstances of this case. I
rejected a similar s 107(1) argument by Mr Prescott in another recent appeal.12
Neither is it relevant that, as Mr Prescott asserts, the police expressed no concern at a random road block set up in order to check warrant of fitness and registration details. The Court is simply concerned with the facts of this case on the evidence given in the District Court.
[36] A further point raised by Mr Prescott concerns the practicalities of effecting repairs to the vehicle. It seems from his evidence that he has experienced intermittent problems with transmission vibration and cold start issues. His contention in the District Court was that he needed to drive the vehicle over an extended period in order to sort out the mechanical problems being experienced.
[37] On the evidence, this state of affairs has existed over a period of some months. There is 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. It is possible to draw the inference that he regards the trade plate exemption as a semi- permanent way of avoiding ordinary registration and inspection requirements. In his
previous appeal before me, he mounted an argument that citizens ought to be free from the restrictions imposed by government regulation of road transport.13 His present difficulties in the current case stem, in my view, from his resort to the trade plate exemption as a way of avoiding the impact of ordinary registration and licensing. The difficulty for him is that the uses to which he may put his vehicle while governed by the trade plate exemption are extremely limited. They do not
include parking the vehicle unattended on a street at night.
Result
[38] In summary, Mr Prescott is unable to rely upon the trade plate as constituting exemption from the registration and licensing requirements otherwise resting upon him because:
(a) the plate was not affixed in accordance with reg 42; and
(b)in any event, an act of leaving the vehicle parked unattended on a public street at night is not a use authorised by the issue of a trade plate.
[39] Accordingly, Mr Prescott was obliged to comply with all of the regulations which underpin the infringement offences which the Justices found to have been proved. I am satisfied that they were correct to do so.
[40] The appeal is accordingly dismissed.
Costs
[41] In the event that the appeal was dismissed, Ms Miller asked for an order for costs pursuant to the provisions of the Costs in Criminal Cases Act 1967. The Court may award scale costs of $226 in respect of an appeal for each half day occupied by
the Court.14 But the Court is empowered to order that the whole or any part of the costs of an appeal be paid by the other party if it is of the opinion that “ … the appeal includes any frivolous or vexatious matter”.15
[42] Ms Miller submits that aspects of Mr Prescott’s conduct of the appeal were vexatious to the point at which this Court would be justified in awarding costs in excess of scale. In my view, there is substance in that submission. I refer briefly to a few examples. A central theme in Mr Prescott’s submissions was the alleged wrongful preference of the Justices for the respondent’s evidence over that of the appellant. Although there was a measure of agreement in the evidence, the witnesses on either side disagreed on matters of detail in some instances.
[43] The respondent’s witnesses gave sworn evidence in the witness box and were available for cross-examination. While the appellant also gave sworn evidence in the witness box, he placed significant reliance on appeal on two affidavits from persons who supported his evidence in certain respects. The deponents were not called to give evidence at the hearing. The suggestion that the Justices ought to have preferred the affidavit evidence of these persons to the sworn evidence of the respondent’s witnesses given in the witness box is untenable.
[44] Further, the appellant included in his notice of appeal and in his synopsis of argument for the hearing of the appeal, certain arguments which were simply risible. For example, he referred in his notice of appeal dated 18 June 2012 to the provisions of the Bills of Exchange Act 1908, contending that the infringement notices were bills of exchange endorsed by him and returned to the respondent, which retained them. The effect of that, he claimed, was that the respondent was deemed to have accepted his denial of liability, and that the respondent accordingly lacked standing.
[45] That is the same point as Mr Prescott took in an earlier appeal before me.16
Although I did not refer in the earlier judgment to his bill of exchange argument, I
made it quite clear to him in the hearing that the Bills of Exchange Act has no
14 See s 4 of the Costs in Criminal Cases Act 1967 and reg 3 and sch 1 of the Costs in Criminal Cases
Regulations 1987.
15 Costs in Criminal Cases Act 1967. s 8(5).
16 Prescott v Police.
application in enforcement proceedings under the land transport legislation. He appeared to accept that at the time, but has now repeated the same argument in the present appeal.
[46] Moreover, his argument based on s 107 of the Crimes Act 1961 is precisely the same argument as I rejected on the earlier occasion.
[47] Another untenable argument is concerned with the distinction Mr Prescott makes between a “natural person” and a “legal person”. He argues that the Justices wrongly ignored the distinction, which he contends is crucial because if the infringement notices were addressed to the “legal person”, then the SPA applied and the appellant’s attendance in those proceedings would have been as a “secured creditor”. On the other hand, he claims that if it is the “natural person” who is the subject of the infringement notices, then the proceedings were in the wrong Court “… as it deals with his inheritance form (sic) the maker and must be heard in a Court of inherent jurisdiction which is the High Court”.
[48] In his earlier appeal before me, Mr Prescott mounted a similar argument, which I dealt with in detail and rejected.17 That judgment was given on 30 April
2012. The notice of appeal in this case is dated 18 June 2012. Mr Prescott was on notice by reason of my earlier judgment that his argument could not possibly succeed. Indeed, during the course of argument at the earlier appeal, he accepted that to be the position. His attempt to revive the point in the present appeal is vexatious.
[49] It is not right that an opposing party should be put to the expense of meeting arguments which have no prospect of success, and which have been expressly or impliedly rejected in earlier proceedings. Although a litigant in person, Mr Prescott now has considerable experience in cases involving transport licensing and registration enforcement, both in the District Court and on appeal in this Court. He
must accept it is not open to him to put other parties to the expense of dealing with
17 Prescott v Police HC Auckland at [12]-[18].
arguments which are both completely untenable and which have been the subject of argument and/or rulings in previous cases to which he was a party.
[50] I consider an award of costs in excess of scale is appropriate. There will be an order directing the appellant to pay to the respondent costs in the sum of $500. That figure is fixed by reference to the likely additional costs to which the respondent has been put in order to meet those aspects of Mr Prescott’s appeal which are, in effect, vexatious.
C J Allan J
3
0
1