Rafiq aka Khan v Auckland Transport

[2022] NZHC 3552

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-364

CRI-2022-404-365 [2022] NZHC 3552

BETWEEN

RAY RAZDAN RAFIQ

(AKA RAY RAZDAN RAFIQ KHAN)
Appellant

AND

AUCKLAND TRANSPORT

Respondent

CRI-2022-404-366

BETWEEN

RAY RAZDAN RAFIQ
(AKA MOHAMMED RAZDAN RAFIQ KHAN)
Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

14 October 2022 and further submissions dated 19 October 2022

Appearances:

Appellant in person

K England for the Respondent in CRI-2022-404-364/365 C Piho for the Respondent in CRI-2022-404-366

Judgment:

20 December 2022

JUDGMENT OF GAULT J

This judgment was delivered by me on 20 December 2022 at 3:00 pm.

Registrar/Deputy Registrar

……………………………………

RAFIQ v AUCKLAND TRANSPORT [2022] NZHC 3552 [20 December 2022]

[1]    This judgment determines whether this Court has jurisdiction in relation to three proceedings in which Mr Rafiq1 seeks to appeal against review decisions by a District Court Judge under s 106F of the Summary Proceedings Act 1957 (SPA).     In those review decisions, the District Court Judge decided that a Registrar’s decision to decline Mr Rafiq’s earlier s 78B application to dispute a fine was correct.

[2]The three proceedings are:

(a)CRI-2022-404-364 and CRI-2022-404-365, in which Mr Rafiq seeks to appeal a review decision of a Judge in the Auckland District Court dated 19 August 2022 in relation to two traffic charges;2

(b)CRI-2022-404-366, in which he seeks to appeal a review decision of a Judge in the Manukau District Court dated 31 August 2022 in relation to three traffic charges.3

[3]    At the first call of these three proceedings, counsel for the respondents submitted there is no jurisdiction for an appeal against a District Court Judge’s review decision under s 106F of the SPA, relying on Underhill v New Zealand Police4 and Drew v Registrar of the District Court at Porirua.5 Mr Rafiq submitted that those cases do not apply, referring to the Court’s inherent jurisdiction and the New Zealand Bill of Rights Act 1990 (NZBORA).

[4]    As Ms England,  counsel  for  Auckland  Transport,  responsibly  suggested,  I indicated that I would give Mr Rafiq an opportunity to file a further memorandum

1      The appellant prefers to be called Mr Rafiq.

2      CRNs 17092400526 and 17092400527 (no warrant of fitness/evidence of vehicle inspection and no evidence of current licence). Although Mr Rafiq filed a notice of general appeal and relies on s 220 of the Criminal Procedure Act 2011, he is seeking to appeal against a review decision under s 106F.

3      CRNs 05092138816, 05092138817 and 05092138818 (failed to ensure child >5<8 use restraint/seatbelt, used unlicensed motor vehicle and learner licensee failed to display L plate).

4      Underhill v New Zealand Police [2015] NZCA 116 at [8]-[9], affirming the decisions of this Court in Underhill v New Zealand Police [2014] NZHC 1367 and Underhill v New Zealand Police [2014] NZHC 2556.

5      Drew v Registrar of the District Court at Porirua [2014] NZHC 1678.

addressing this jurisdiction issue before determining it on the papers. I made timetable directions accordingly.6

Factual background

CRI-2022-404-364 and CRI-2022-404-365

[5]    On 20 November 2017, Auckland Transport issued Mr Rafiq with an infringement notice for no warrant of fitness/evidence of vehicle inspection and an infringement notice for no evidence of current licence.

[6]    On or about 13 December 2017, Mr Rafiq requested a court hearing to dispute the two infringement offences. As a result, Auckland Transport issued notices of hearing / charging documents.7

[7]    On 7 March 2018, a trial on a series of charges related to having an unregistered and/or unwarranted car on 31 August 2017, 3 October 2017, 17 October 2017 and  20 November 2017 took place before Justices of the Peace. They found the case proven and ordered Mr Rafiq to pay a fine plus court costs.

[8]    On 27 April 2018, Mr Rafiq filed an appeal against the decision of the Justices of the Peace.

[9]    On 19 February 2019, Mr Rafiq’s appeal was dismissed by Judge C J Harding in the Manukau District Court except as to variation of sentence to allow for time payments.8

[10]   On 8 March 2019, Mr Rafiq sought leave to file a second appeal in the    High Court.

6      Minute dated 14 October 2022. No jurisdiction issue arose in relation to the fourth proceeding, CRI-2022-404-351, which was timetabled to a hearing.

7      CRNs 17092400526 and 17092400527.

8      Auckland Transport v Khan [2019] NZDC 3899.

[11]   On 31 October 2019, this Court declined Mr Rafiq leave to appeal.9

[12]   Subsequently, Mr Rafiq filed an application under s 78B of the SPA in respect of the two infringement offences.

[13]   On 24 June 2021, Auckland Transport filed its opposition to the s 78B application.

[14]Subsequently, a Registrar declined the s 78B application.

[15]Mr Rafiq applied to review the Registrar’s decision.

[16]   On 19 August 2022, a Deputy-Registrar wrote to Mr Rafiq notifying him that a Judge at Auckland District Court had determined under s 106F of the SPA that the decision to decline Mr Rafiq’s s 78B application was correct.

[17]   On 27 September 2022, Mr Rafiq filed his notice of appeal in CRI-2022-404- 364 and CRI-2022-404-365.

CRI-2022-404-366

[18]   On or about 1 September 2005, Police issued Mr Rafiq with an infringement notice for three infringements:10 failed to ensure child >5<8 use restraint/seatbelt; used unlicensed motor vehicle; and learner licensee failed to display L plate.

[19]   More recently, Mr Rafiq filed an application under s 78B of the SPA in respect of the three infringement offences, providing the infringement notice and a request for court hearing dated 25 September 2005. Mr Rafiq says that (in 2005) Police failed to allocate any hearing date and notify him.

[20]On 26 March 2021, a Registrar declined the s 78B application.11

9      Rafiq v Auckland Transport [2019] NZHC 2791. As indicated below, Mr Rafiq disputes that the 20 November 2017 charges in this proceeding were adjudicated in the earlier High Court leave proceeding.

10 N4460747.

11 Referring to CRNs 05092138816, 05092138817 and 05092138818 applying to the three infringement offences.

[21]   Mr Rafiq applied to review the Registrar’s decision.

[22]   On 31 August 2022, a Deputy-Registrar wrote to Mr Rafiq notifying him that a Judge at Manukau District Court had determined under s 106F of the SPA that the decision to decline Mr Rafiq’s s 78B application was correct.

[23]   On 27 September 2022, Mr Rafiq filed his notice of appeal in CRI-2022-404- 366.

Mr Rafiq’s submissions on jurisdiction

[24]   Mr Rafiq’s further memorandum submitted that the appeals in CRI-2022-404- 364 and CRI-2022-404-365 can be treated as appeals against fines and court costs imposed by first appeal in the District Court. He submitted they were not adjudicated in the earlier High Court leave proceeding as the appeal related to other infringement fines.

[25]   Mr Rafiq also submitted there is jurisdiction to advance a general right of appeal against decisions of District Court Judges. He relied on the Court’s inherent common law jurisdiction, s 25 of NZBORA, a general right of appeal under the SPA, the Criminal Procedure Rules 2012 and the Land Transport Act 1998. He also referred to the interests of natural justice. He submitted the laws do not statute bar any right of appeal and the Court holds inherent common law jurisdiction or doctrines covering civil and criminal proceedings. He submitted there are prima facie merits in the appeals as the Registrar’s decisions were wrong and the interests of justice require the appeals to be heard to avoid a miscarriage of justice. He claimed his request for court hearings were not processed and no hearing was allocated.

Analysis

[26]   As indicated, Mr Rafiq seeks to appeal against review decisions by a District Court Judge under s 106F of the SPA. In those review decisions, the District Court Judge decided that a Registrar’s decision to decline Mr Rafiq’s earlier s 78B application to dispute a fine was correct.

[27]   Section 78B provides for the District Court to correct irregularities in proceedings for infringement offences. It provides:

78B     Power to correct irregularities in proceedings for infringement offences

(1)This section applies if a defendant is deemed to have been ordered, or is ordered, to pay a fine or costs or both under section 21 and—

(a)a District Court Judge or Registrar, on the application of the defendant, is satisfied on the basis of information provided with the application that—

(i)the defendant is not a person to whom the infringement notice was issued or on whom the notice is deemed to have been served; or

(ii)the defendant (not being a defendant who, under section 78C(1) or (3), is ineligible to rely on this ground) did not in fact receive the reminder notice required to have been served on the defendant under section 21; or

(iia) the defendant did not in fact receive a copy of the  notice of hearing required to have been served on the defendant under section 21; or

(iii)some other irregularity occurred in the procedures leading up to the order for the fine or costs, or both; or

(iv)the defendant believed on reasonable grounds that he or she had requested a hearing under section 21, but this request was not acted on by the informant; or

(v)the defendant reasonably believed that he or she had been advised by the informant that action would not be taken under section 21(3); or

(vi)the defendant reasonably believed that he or she had been advised by the informant that further time for requesting a hearing would be allowed under section 21(6)(b), but action was taken under section 21(3) before that further time had expired; or

(vii)the defendant—

(A)had, in writing, requested further relevant information from the informant in relation to the infringement offence; and

(B)had made the request within a time that would reasonably enable the informant to respond before the earliest time at which the informant

would be entitled to take action under section 21(3); and

(C)believed on reasonable grounds that the informant had not refused to provide the requested information and that action would not be taken under section 21(3) before that information had been provided; and

(D)was not provided with the information before action was taken under section 21(3); or

(viii)the defendant paid the infringement fee to the informant [by a payment method] specified in the infringement notice before or within 28 days after service on the defendant of a reminder notice in respect of the offence to which the notice relates; or

(b)the informant applies to a District Court Judge or Registrar to withdraw the reminder notice filed or deemed to have been filed under section 21.

(1A) No more than 1 application, made in reliance on the ground stated in subsection (1)(a)(ii), may be granted in respect of the same defendant for the same infringement offence.

(1B)     An application under subsection (1) may be made—

(a)in writing in a form approved under section 209A; or

(b)electronically in a manner approved by the chief executive of the Ministry of Justice.

(1C)     An application under subsection (1) may be—

(a)made to any Court; and

(b)considered in another Court besides the one to which it is made.

(2)The Judge or, subject to subsections (3) and (4), the Registrar may do one or more of the following:

(a)authorise the informant to serve a reminder notice on a person other than the defendant (being a person to whom the infringement notice was issued or on whom it was deemed to have been served):

(b)authorise the informant to serve on the defendant another copy of the reminder notice or the notice of hearing and, for that purpose, require the defendant to specify an address at which personal service, service by post, or service by either method may be effected:

(c)grant a hearing or rehearing of the matter, and proceed with the hearing or rehearing immediately if both parties agree, or set it down for a later date:

(d)set aside or modify the order:

(e)make any other order as to costs or otherwise that the Judge or Registrar considers appropriate in the circumstances.

(3)If a Registrar considering an application under subsection (1)(a) is satisfied that any of subparagraphs (i) or (iv) to (vii) of subsection (1)(a) applies, the Registrar must not exercise the power conferred by subsection (2)(a) or (b) except with the consent of the informant.

(4)A Registrar may not exercise the power conferred by subsection (2)(d) except where the application is made under subsection (1)(a)(viii) or (1)(b).

(4A)     A Judge or Registrar must deal with an application under subsection

(1) on the papers unless the Judge or Registrar considers that a hearing is necessary.

(4B)     While an application under subsection (1) is pending,—

(a)no warrant, order, or notice may be issued or take effect to enforce the order to which that application relates; and

(b)the Registrar must take appropriate steps to ensure that the order is not acted on.

(4C) Despite subsection (4B), if, before an application under subsection (1) is made, any property has been seized under a warrant to seize property to enforce the order to which that application relates,—

(a)any seized property that has not been sold, assigned, applied, released, or otherwise disposed of must be retained under section 100B(3) while the application is pending; or

(b)if the seized property has been sold but the proceeds of sale have not been applied in accordance with section 100N or 100R, the proceeds must be retained while the application is pending.

(4D)If the order to which the application relates continues in effect after  the application is determined or is discontinued, the property must be dealt with, and any fees and costs payable under an enactment in respect of the property are payable, as if the application had not been made.

(4E) If, on the determination of the application, the order is set aside or ceases to have effect in accordance with subsection (5), the owner—

(a)is entitled to—

(i)the return of the property if the property has been retained in accordance with subsection (4C)(a); or

(ii)the proceeds of any sale if the proceeds have been retained in accordance with subsection (4C)(b); and

(b)is not liable for any fees and costs payable under an enactment in respect of the property.

(4F)In any case where a Judge or Registrar gives a direction authorising  the service of a reminder notice or a copy of a reminder notice under subsection (2)(a) or (b) (a new reminder notice) in replacement of, or by reference to, a previous reminder notice, then—

(a)section 21(3)(b), (3D)(b), and (10)(a), if applicable to the case, apply as if the reference to the date of service of the reminder notice were a reference to the date of the direction by the Judge or Registrar; and

(b)section 21(3B), (5)(a), (5A)(a), and (8)(d), if applicable to the case, apply as if the reference to the time when the offence is alleged to have been committed were a reference to the date of the direction by the Judge or Registrar.

(4G) If, under subsection (2)(b), a Judge or Registrar authorises the informant to serve on the defendant a new reminder notice, the defendant may not give notice requesting a hearing in respect of the infringement offence to which the notice relates if the Registrar is satisfied that the notice was filed following the defendant's default in paying 1 or more instalments under an arrangement entered into under section 21(3A) or (3C)(a).

(4H) If, under subsection (2)(d), an order is set aside following an application made by the informant under subsection (1)(b), the setting aside is not a bar to any other proceedings in the same matter.

(5)If a Judge or Registrar exercises a power under subsection (2)(a), (b), or (c), the order made or deemed to have been made against the defendant ceases to have effect and the Registrar must take appropriate steps to ensure that the order is not acted on.

(6)If a defendant granted a hearing or rehearing under this section does not appear, the Court may, if it thinks fit, without hearing or rehearing the matter, direct that the original order be restored.

[28]   Section 106F of the SPA provides for a District Court Judge to review a decision made by a Registrar under s 78B (or s 78C). Section 106F provides:

106F    Review of Registrar's decision

(1)Any defendant or other person affected by any order or decision made by a Registrar under section 78B or 78C or under this Part of this Act may apply to a District Court Judge for a review of the order or decision.

(2)On any such review the Judge may confirm, rescind, or vary the Registrar's order or decision and the order or decision shall have effect, or cease to have effect, accordingly.

(3)If the decision to which the application under subsection (1) relates is a decision to issue a warrant to seize property and that warrant has been executed,—

(a)any seized property that has not been sold, assigned, applied, released, or otherwise disposed of must be retained under section 100B(3) if an application for review is made under subsection (1) and the review is pending; or

(b)if the seized property has been sold but the proceeds of the sale have not been applied in accordance with section 100N or 100R, the proceeds must be retained if an application for review is made under subsection (1) and the review is pending.

(4)If, on the determination of the review, the Judge confirms the Registrar's decision to issue the warrant to seize property, the property must be dealt with, and any fees and costs payable under an enactment in respect of the property are payable, as if the application had not been made.]]

(5)If, on the determination of the review, the Judge rescinds the Registrar's decision to issue the warrant to seize property, the owner—

(a)is entitled to—

(i)the return of the property if the property has been retained in accordance with subsection (3)(a); or

(ii)the proceeds of any sale if the proceeds have been retained in accordance with subsection (3)(b); and

(b)is not liable for any fees and costs payable under an enactment in respect of the property.

(6)On a review of a Registrar's decision to issue a warrant to seize property, the Judge may, subject to subsection (5)(b), make any order on any matter (including costs) that the Judge thinks just, having regard to all the circumstances of the case.

[29]   In Underhill v Police,12 the Court of Appeal agreed with this Court, in which Simon France J said in relation to s 106F reviews:13

12     Underhill v New Zealand Police [2015] NZCA 116 at [8]-[9].

13     Underhill v Police [2014] NZHC 1367 at [10]. See also Underhill v New Zealand Police [2014] NZHC 2556, in which Gilbert J declined leave to appeal to the Court of Appeal.

There is considerable authority confirming that a review decision of this sort is neither appealable under the general conviction appeal provision (s 115 of the Summary Proceedings Act 1957), nor under s 72 of the District Courts Act 1947 (which is limited to civil matters).¹⁴

[30]Drew v The Registrar of the District Court at Porirua15 is to similar effect.

[31]   These decisions reflect the more general point that appeals against decisions of the District Court are governed by statute. There is no separate common law right of appeal.

[32]   Section 115 of the SPA referred to in Underhill has been repealed. Criminal appeals are now governed by Part 6 of the Criminal Procedure Act 2011. Subpart 3 of Part 6 governs appeals against conviction, subpart 4 governs appeals against sentence and subpart 6 governs appeals against decisions on costs orders. Their current provisions also have no application in relation to an appeal against a District Court Judge’s review decision under s 106F of the SPA.

[33]   Section 72 of the District Courts Act 1947 referred to in Underhill has also been repealed. However, the current provision, s 124 of the District Court Act 2016, similarly has no application in relation to an appeal against a District Court Judge’s review decision under s 106F of the SPA.

[34]   Section 25 of NZBORA affirms the right of everyone charged with an offence to minimum standards of criminal procedure. This includes the right, if convicted of an offence, to appeal according to law to a higher court against the conviction or against the sentence or against both.16 This right of appeal according to law is provided for by statute. Section 25 does not require an appeal against a District Court Judge’s review decision under s 106F of the SPA.

[35]   Accordingly, this Court has no jurisdiction in relation to these three proceedings. That is so irrespective of whether earlier requests for court hearings were

14 See for example, Page v Ministry of Justice [2013] NZHC 1309; United States of America v Dotcom [2012] NZHC 1353; Evers v Registrar, District Court, Blenheim HC Blenheim AP 1/97, 14 February 1997; Delta Transport (1995) Ltd v Palmerston North District Court Bailiff HC Palmerston North AP 49/96, 6 June 1997.

15 Drew v The Registrar of the District Court at Porirua [2014] NZHC 1678 at [5].

16 Section 25(h).

not processed and/or Mr Rafiq’s s 78B application in relation to CRI-2022-404-364 and CRI-2022-404-365 was preceded by a hearing of the same charges before Justices of the Peace, an appeal to the District Court and an application for leave to appeal to this Court. If those hearings did concern the same charges, as appears to be the case, a further attempt to appeal would also be an abuse of process.

Result

[36]     The proceedings in CRI-2022-404-364, CRI-2022-404-365 and CRI-2022-

404-366 are struck out for want of jurisdiction.

Gault J

Parties / Solicitors:

The Appellant
Ms K England, Auckland Transport, Auckland

Mr C Piho, Kayes Fletcher Walker, Office of the Crown Solicitor, Manukau City