Richardson v Attorney-General
[2016] NZHC 67
•3 February 2016
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2015-409-000246 [2016] NZHC 67
BETWEEN DEAN PAUL RICHARDSON
Applicant
AND
THE ATTORNEY-GENERAL Respondent
Hearing: 18 November 2015 Appearances:
S W Rollo for Applicant
A Todd for RespondentJudgment:
3 February 2016
JUDGMENT OF DUNNINGHAM J
[1] The applicant is a 21 year old New Zealander who holds a New Zealand learner driver licence entitling him to drive a car under supervision. In October 2014 he obtained a full driver licence from the Cook Islands, entitling him to drive a car and a motorcycle. This Cook Islands licence is valid and current.
[2] The issue in this proceeding is whether the applicant is deemed to hold a full New Zealand driver licence under the deeming provision in cl 88 of the Land Transport (Driver Licensing) Rule 1999 (the 1999 Rules), even though he is only recognised as a learner driver in New Zealand.
[3] The issue arises because, on returning to New Zealand with a full Cook Islands driver licence issued on 13 October 2014, Mr Richardson was stopped by police while driving a car. As he was not complying with the conditions of a New Zealand learner licence (driver unaccompanied by a suitable driver, and failing to display his learner plates), he was issued with an infringement notice. He seeks a
declaration that, by operation of cl 88, he held at all relevant times a full
RICHARDSON v THE ATTORNEY-GENERAL [2016] NZHC 67 [3 February 2016]
New Zealand driver licence of a class that entitled him to drive a car and a motorcycle.
[4] Clause 88 of the 1999 Rules is at the heart of this proceeding. The relevant provisions are as follows:
88 Recognition of overseas driver licence or permit
(1) A person, on arrival in New Zealand, is deemed to hold a New Zealand driver licence of a class that entitles the person to drive the motor vehicles that the person is entitled to drive under—
(a) a valid and current driver licence or permit issued overseas to the person, after the person has produced proof of the person's driving competence, by an overseas authority, or an agent of that authority, authorised to issue a driver licence or permit; or
…
(2) However,—
(a) subclause (1)(a) does not apply unless—
(i) the overseas driver licence or permit is written in
English; or
(ii) the person who holds the overseas driver licence or permit also carries an accurate English translation of the licence or permit:
…
(3) A person who is deemed by subclause (1) to hold a New Zealand driver licence may continue to drive under that driver licence until the first of the following situations occurs:
(a) the person has remained in New Zealand for a continuous period of 12 months; or
(b) the document that enabled that person to be deemed to hold a New Zealand driver licence under subclause (1) expires, is suspended, or is revoked; or
(c) an order is made disqualifying the person from holding or obtaining a driver licence, either in New Zealand or in the jurisdiction that granted the overseas driver licence or permit; or
(d) the person obtains or renews a New Zealand driver licence.
...
The applicant’s submissions
[5] The applicant argues that his Cook Islands licence is a driver licence under New Zealand law. The Land Transport Act 1998 (the Act) defines the term “driver licence” to mean “a licence to drive that is issued or has effect under this Act”.1 The Cook Islands licence “has effect” under the Act by virtue of cl 88 and, therefore, it is a valid New Zealand “driver licence” by definition.
[6] A consequence of this is that an overseas licence enjoys equal status under the law to a New Zealand-issued licence; one is a licence “issued” under the Act, the other is a licence that “has effect” under the Act.
[7] The applicant also says that the law does not provide for partial recognition of overseas licences so that, in this case, the motorcycle licence is recognised but the car licence is not. In support, he points to cl 88(1) of the rules which says:
A person, on arrival in New Zealand, is deemed to hold a New Zealand driver licence of a class that entitles the person to drive the motor vehicles that the person is entitled to drive under [the overseas licence].
[8] He adds that there are only very limited circumstances when the law will invalidate a part of the driver licence, as provided in s 29 of the Act. These are when:2
(a) the person who obtained the authority is not qualified to drive, or is disqualified from driving, vehicles of that class; or
(b)the relevant part of the licence or the endorsement is for the time being suspended, or has been revoked, under any Act.
[9] However, because here there are no grounds to suggest the applicant wrongly obtained his licence or any class of licence, he says that any suggestion that he is otherwise “not qualified” to drive a car must be rejected. The fact he only holds a New Zealand learner licence, and therefore is not qualified to drive a car
unaccompanied, falls away when the very purpose of cl 88 is to recognise that a
1 Section 2.
2 Land Transport Act 1998, s 29(2).
person is legally authorised to drive a motor vehicle in New Zealand because they have been licensed by a competent overseas authority.
[10] The applicant also disputes the respondent’s submission that the New Zealand-issued learner licence must overrule the overseas-issued full licence. Instead, he says the legislative framework works the other way around, so that a superior overseas licence supersedes an inferior New Zealand licence. He says that cl 88(3) identifies the circumstances in which the validity or recognition of the overseas licence comes to an end, relevantly, sub-cl (d) states that a person loses the benefit of their overseas licence when “the person obtains or renews a New Zealand licence” (emphasis added). He says the inclusion of the two alternatives is significant. A person must hold a New Zealand licence to “renew” it, and thus the driver licensing rule expressly recognises a person might hold a New Zealand driver licence before obtaining an overseas licence.
[11] In reliance on s 29(1)(c) of the Act, the applicant argues that an inferior New Zealand-issued licence no longer has “effect” when a person returns or arrives with a superior licence issued overseas because that section provides that a licence has “no effect if … the licence is revoked, cancelled, superseded, or replaced” (emphasis added). He says the word “superseded” contemplates one licence becoming superfluous due to the existence of another and submits that that is what has happened in this case; the driver licence issued by the Cook Islands, being a full driver licence by definition in New Zealand law, superseded or supplanted the New Zealand-issued learner driver licence.
[12] While the above arguments rely primarily on the literal application of cl 88, the applicant also argues that his interpretation is consistent with the scheme of the legislation. He says it is implicit in the provisions relating to recognition of overseas licences that New Zealand is deferring to the judgment of competent overseas authorities in determining who is authorised to drive and under what conditions. It is illogical to read the legislation in a way which has the effect of New Zealand accepting the determination of an overseas authority in respect of a person who had not passed any of New Zealand’s driver licensing tests, but refusing to accept the
judgment of the same overseas authority in respect of a person who has completed
some of New Zealand’s tests.
[13] Finally, the applicant cautioned against approaching the issue with an unspoken concern that there is a “shortcut” or loophole that enables the applicant to circumvent New Zealand’s testing regime. Instead, consideration must be given to the wider implications if the declaration the applicant seeks is not made. In this respect, the applicant gives the example of a teenager who moves to Australia with only a learner or restricted licence and then obtains a full Australian licence and returns to New Zealand several years later. He says it would be irrational for such a person not to have their licence recognised, only because they had left New Zealand for Australia after starting, but prior to completing, their New Zealand licence. He says the law should not be applied in a manner that would deprive anyone from having their overseas licence recognised, simply because they had commenced their driver licensing qualification under the New Zealand regime.
The respondent’s submissions
[14] The respondent relies on the relevant principles of interpretation to argue that, while the Cook Islands motorcycle licence will be recognised in New Zealand under cl 88, the car licence will not. The respondent submits that cl 88 must be interpreted according to its text and in the light of its purpose under the Interpretation Act 1999. While the starting point in construction of cl 88 is the actual language used by the legislature, the respondent points out that when interpreting a provision, the surrounding provisions form part of the statutory context which will assist with clarifying or even modifying the meaning of the provision at issue. Furthermore, the Court will strive to avoid literal interpretations which result in an absurdity, being “virtually any result which is unworkable or impracticable, inconvenient, anomalous or illogical, futile or pointless, artificial, or productive of a disproportionate
counter-mischief”.3 It is also noted that, where the purpose of an Act is sufficiently
clear, it may prevail over the text or the relevant part of it.4
3 Frucor Beverages Ltd v Rio Beverages Ltd [2001] 2 NZLR 604 (CA) at [28] per Thomas J.
4 JF Burrows and RI Carter, Statute Law in New Zealand (4th ed, LexisNexis, Wellington, 2009) at
212.
[15] Turning to cl 88 itself, the respondent identifies that the clause contains a deeming provision and, in interpreting deeming provisions, it is very important to consider the purpose for which the “statutory fiction” is introduced.5 Thus, while the Court may not ignore the ordinary meaning of the statutory wording, it should also be alive to the fact that deeming provisions, by nature, involve artificial assumptions and that Parliament is unlikely to be able to prescribe the precise circumstances in which those assumptions apply.6
[16] The respondent acknowledges that, on a plain and literal interpretation of cl 88(1)(a), without more, the words are not restricted in any way. However, when the context is taken into account, including the surrounding provisions, and the purpose of the legislation, it is proper to read restrictions into the extent of the deeming provision in cl 88.
[17] Like the applicant, the respondent focuses on cl 88(3)(d) which states that the deeming provision ceases to apply if the person “obtains or renews” a New Zealand driver licence. Ms Todd submitted a person “obtains” a licence if he or she does not already have one; and “renews” one that has since expired. This presupposes that the deeming provision will not be used if the person already has a New Zealand licence for the same class. She submitted that sub-cl 88(1)(a) was modified by sub-cl 88(3)(d), so that sub-cl 88(1)(a) does not apply where a person holds an existing and valid New Zealand driver licence for the same class, in this case, a New Zealand learner licence. She also points out that the clause comes within Part 14 of the 1999 Rules which is said to address “Recognition of overseas licences and licensing of drivers from overseas”, which “presupposes” that the rule is not being used by a person who has a New Zealand licence for the same class of vehicle.
[18] It was submitted that an examination of the legislative history to the clause supported such an interpretation. The predecessor to cl 88 under the previous regulations was cl 56 of the Transport (Drivers Licensing) Regulations 1987, which
provided:
5 Burrows and Carter, above n 4, at 431.
6 Jenks v Dickinson [1997] STC 853 (ChD) at 878.
56 Recognition of overseas licences and permits
(1) Every person who on arrival in New Zealand holds
(a) A valid driving permit issued [in certain States or an international driving permit]
…
shall be deemed to be the holder of a licence issued in New Zealand authorising the person to drive the class of vehicle or classes of vehicles to which the permit relates, until…
(d) the expiry, cancellation, suspension, or revocation of the licence; or
(e) an order is made disqualifying the person from
holding or obtaining a driver’s licence; or
(f) the close of the first licensing year that commences after the arrival of the person in New Zealand-
whichever first occurs.
(2) The provisions of these regulations and the Act shall apply to any person to whom this regulation applies as if the licence or permit held by that person were a licence issued in New Zealand.
[19] Clause 88 of the current rules took effect from 3 May 1999 but has undergone a few (mostly cosmetic) changes over the years. The objective of the current rule is summarised as follows:7
88 Recognition of overseas driver licence or permit
…
(35) requiring visitors to New Zealand, who drive using an International Driving Permit, to carry the overseas driver licence on which that permit is based.
(36) clarifying that a person returning to New Zealand and whose New Zealand licence has expired can drive in New Zealand on a valid and current overseas licence for up to 12 months.
[20] The respondent says that the assumption underpinning cl 88, as confirmed by these objectives, is that the holder of the overseas driver licence does not hold a
7 In Schedule 1 to the Land Transport (Driver Licensing) Amendment Rule 2011.
current New Zealand licence for the same class. This interpretation, says the respondent, is consistent with and supports the purpose of the Land Transport Act
1998, the 1999 Rules, and the clause.
[21] Ms Todd submitted that the “clear objective” of the Act is the promotion of road safety.8 Section 152 empowers the Minister to make rules for the purposes of “safety and licensing for any form of transport within the land transport system”, and s 154(k) states those rules may:
[G]ive effect to any international convention concerning the recognition of driver licences and permits issued outside New Zealand and the recognition of international driving permits.
[22] The relevant convention is the 1968 United Nations Convention on Road Traffic which was adopted by the contracting parties “to facilitate international road traffic and to increase road safety through the adoption of uniform traffic rules”.9
[23] The respondent submits that the overall road safety imperative of the rules is enhanced by an interpretation of cl 88(1)(a) that excludes reliance on the deeming provision by a person who holds a full overseas car licence, but only a New Zealand learner licence. The Court should lean against an interpretation that allows a person to use this deeming provision to bypass the necessary licensing system in New Zealand.
[24] The purpose of the rule is to enable overseas drivers to drive lawfully in New Zealand. The clause assumes they may not otherwise do so, either because they do not have a New Zealand licence or, if they have one, it has since expired. That is why the deeming provision is required. It is also why the deeming effect of cl 88 ceases to operate when a person “obtains or renews a New Zealand licence”. The respondent submits that the applicant’s interpretation frustrates the statutory purpose and leads to an “absurd application of the statutory fiction” that this Court should
reject.
8 Wishart v New Zealand Police HC Auckland A185/01, 27 March 2002 at [12].
9 United Nations Convention on Road Traffic 1042 UNTS 17 (opened for signature
8 November 1968, entered into force 21 May 1977).
[25] The respondent acknowledges the anomaly pointed out by the applicant, that this approach would mean that individuals who obtained their learner licence in New Zealand and then moved to somewhere like Australia or the United Kingdom and obtained their full driver licence, would not be able to drive relying on their full licence because they held a New Zealand learner licence. However, Ms Todd submits that individuals who hold an overseas driver licence from a country with a licensing system that is “genuinely similar to New Zealand, can convert his/her foreign licence into a New Zealand licence without having to undertake any further tests”. The Cook Islands does not fall into that category. This is because under cl 89A(3) and (4) of the 1999 Rules, drivers who apply for New Zealand licences must sit the theory and practical driving tests, unless they have a valid overseas licence from a range of specified countries, which includes Australia and the United Kingdom. Thus the hypothetical person referred to could simply convert his or her licence from Australia or the United Kingdom and thereby extinguish the previous New Zealand learner licence.
[26] Ms Todd then raised a supplementary argument which was that cl 88(1)(a) required the applicant to produce “proof of the person’s driving competence”. Ms Todd says the applicant was required to undertake a practical test on a motorcycle, but not a practical test in a car, before he was issued by the Cook Islands with a driver licence to drive both types of motor vehicle.
[27] While she disavowed wishing to “look behind or question the validity of the driver licence for both classes of vehicle insofar as this entitles the applicant to drive a car and a motorcycle in the Cook Islands”, she said there was a question of fact as to whether, for the purposes of the deeming provision in New Zealand law, the applicant’s Cook Islands’ car licence was issued after he had produced proof of his driving competence. Because there was no proof that the applicant had demonstrated competence in driving a car, the requirements of cl 88(1)(a) had not been met and the applicant could not rely on a deeming provision in the circumstances of this case.
Does the applicant come within the requirements of cl 88(1)(a) for his
Cook Islands’ licence to drive a car?
[28] The provisions in the 1999 Rules, which allow drivers from overseas to drive on their overseas licences, have their origins in the United Nations Convention on Road Traffic 1949, to which New Zealand is a signatory.10 Article 24 provides:
1. Each Contracting State shall allow any driver admitted to its territory who fulfils the conditions which are set out in annex 8 and who holds a valid driving permit issued to him, after he has given proof of his competence, by the competent authority of another Contracting State or subdivision thereof, or by an association duly empowered by such authority, to drive on its roads without further examination motor vehicles of the category or categories defined in annexes 9 and 10 for which the permit has been issued.
[29] There follows, in the same Article, the ability for a Contracting State to require the driver to carry an international driving permit. Clause 5 of Article 6 allows the Contracting State to withdraw the right to use either the licence or the international driving permit if “the driver has committed a driving offence of such a nature as would entail the forfeiture of his driving permit under the legislation and regulations of that Contracting State”.
[30] In summary, as a signatory to the United Nations Convention, New Zealand has allowed the holders of valid licences issued by other signatory countries to drive in New Zealand on that licence without further examination. New Zealand drivers have reciprocal privileges when driving in the countries of the other signatories. Indeed, under the 1999 Rules, New Zealand extended recognition to all driver licences, regardless of the country of origin. This policy is consistent with the practice of other countries New Zealand would consider comparable, including
Great Britain, Australia, Germany, and the USA.11
[31] When the 1999 Rules were introduced, sch 1 set out the objective of the
1999 Rules, which was primarily focused on introducing the graduated classification system of licensing drivers. It said nothing specific about cl 88 which appears to
10 United Nations Convention on Road Traffic 125 UNTS 3 (opened for signature
19 September 1949, entered into force 26 March 1952).
11 Transport and Industrial Relations Committee Petition 2011/118 of Sean Roberts and
Cody Roberts (4 July 2014).
have simply continued earlier provisions to recognise overseas driver licenses or permits under the United Nations Convention on Road Traffic.
[32] The current version of cl 88 was introduced by cl 36 of the Land Transport (Driver Licensing) Amendment Rule 2011. The only explanation for the new version of the Rule is as provided in Schedule 1, that it was “clarifying that a person returning to New Zealand and whose New Zealand licence has expired can drive in New Zealand on a valid and current overseas licence for up to 12 months”. It gives no guidance as to its application beyond that statement.
[33] The respondent emphasised that the 1999 Rules were made pursuant to the Land Transport Act 1998, and the long title of the Act describes one of its purposes as being:
(a) to promote safe road use of behaviour and vehicle safety; and
…
However, a further purpose of the Act is:
(d) to enable New Zealand to implement international agreements relating to road safety and land transport.
[34] Thus, while there is a clear road safety objective in the Act, and a primary purpose of the 2011 amendment to the 1999 Rules was to make “significant gains in Land Transport Safety through the implementation of an improved system for driver licensing”, I do not consider that this specific clause in the 1999 Rules was designed with a road safety objective in mind. Instead, it is a practical provision designed to implement New Zealand’s United Nations Convention obligations and to allow individuals returning or travelling from overseas a period of up to 12 months before their overseas licence needs to be replaced by a New Zealand-issued licence. As implementation of such international agreements is an express purpose of the rule, there is no need to read the clause in an artificial way to achieve a perceived road safety objective when, on the plain wording of the provision, that seems unlikely to have been intended.
[35] The problem which appears to have arisen in the present case is that, with the introduction of a graduated licence system, a New Zealander wishing to obtain a driver’s licence now must hold first, a learner licence, under which they cannot drive except under the supervision of someone who has held a full licence for at least two years, and then hold a restricted licence before they can obtain a full licence.
[36] The respondent accepts that if Mr Richardson had no licence, he could then rely on an overseas-obtained full driver’s licence and drive on that for up to
12 months. However, as he has obtained a learner licence in New Zealand, the respondent says Mr Richardson has a licence that entitles him to drive a motor vehicle, albeit under restrictions, so the rules should not be interpreted as allowing him to drive on his full driver licence obtained from the Cook Islands and to thereby “bypass the necessary licensing system in New Zealand”.
[37] Once an individual has a valid and current driver licence issued to him or her from overseas, under the terms in s 88(1)(a), there is nothing in the language of the rule which requires that to be read down to prohibit someone who has previously obtained a learner licence, from driving under the overseas-obtained full licence.
[38] The regime is premised on the assumption that the foreign country’s system for being satisfied of the person’s driving competence does not need to be investigated, as long as there is provision in the overseas regime for requiring proof of driving competence before a licence is issued. Here, there is no question that Mr Richardson’s motorcycle licence from overseas will be recognised for up to
12 months. It is inconsistent, then, to suggest that the motor vehicle licence will not be.
[39] Furthermore, there can be no road safety objective achieved if someone with no licence qualifications at all obtains an overseas licence and is permitted to drive in New Zealand for up to 12 months, whereas someone who went as far as obtaining a learner driver licence in New Zealand, and then a full motor vehicle licence overseas, is not permitted to drive on that licence. That would, indeed, create the type of absurdity which the respondent urges should be avoided.
[40] For these reasons, I am satisfied that the applicant, as the holder of a full driver licence from the Cook Islands entitling him to drive a car and a motorcycle, has a deemed full New Zealand driver licence for both those classes of vehicles, despite having obtained a learner licence for motor vehicles prior to going to the Cook Islands. That is the most logical way to read the provision which deems him to hold a driver licence of a class that entitles him to drive the motor vehicles which he can drive under his Cook Islands’ licence. This operates until he obtains an equivalent New Zealand driver licence for that class of vehicle, or for a period of
12 months from his return to New Zealand, whichever is the sooner. There is nothing in the legislation which requires me to artificially restrict those who have had a learner licence issued to them from the benefit of this provision when, had that person not taken that step, he or she would be entitled to its full benefit.
Are the requirements of clause 88(1)(a) met in this case in any event?
[41] The respondent, as a subsidiary argument, says that to rely on cl 88(1)(a), four elements must be established:
(a) the overseas licence or permit is valid and current;
(b)the overseas licence or permit is issued by an overseas authority or an agent of that authority;
(c) that authority or its agent is authorised to issue a driver licence or permit; and
(d) the overseas licence or permit is issued to the applicant after the
person has produced proof of the person’s driving competence.
[42] The respondent argues that the first three elements are not in doubt but the fourth is. This is because the applicant was required to undertake a practical test on a motorcycle but not a practical test in a car before he was issued by the Cook Islands with a driver licence to drive both types of motor vehicle.
[43] However, Ms Todd for the respondent also says that she “does not wish to look behind or question the validity of the driver licence for both classes of vehicle insofar as this entitles the applicant to drive a car and a motorcycle in the Cook Islands”, and accepts it is valid for those purposes.
[44] I do not accept the respondent’s argument. The requirement to demonstrate driving competence goes back to the wording of article 24 of the United Nations Convention on Road Traffic. The reciprocal rights and obligations only apply to those who hold “a valid driving permit issued to him after he has given proof of his competence”.
[45] The relevant Cook Islands legislation reflects the Convention’s requirement to be satisfied as to the applicant’s competence. Section 17(2) of the Cook Islands Transport Act 1966 states:
(2) Every person desirous of obtaining a motor drivers’ licence shall make application to the Registrar, or Deputy Registrar if the case may be, who shall issue the licence upon being satisfied of the following facts:-
…
(b) That, by a practical test and oral examination or by other satisfactory evidence of fitness, the applicant is competent to drive the class of motor vehicle in respect of which a licence is applied for.
…
[46] The respondent takes no issue with the validity of the licence issued under Cook Islands’ law. That law makes express the requirement to being satisfied of the driver’s competence before the licence is issued. It would make the entire regime inoperable if, despite the licence being validly issued in a country pursuant to a legislative provision which requires the issuing authority to be satisfied as to competence, this had to be looked behind, or questioned, in New Zealand. Furthermore, it belatedly raises a question of fact which is not amendable to resolution in this type of proceeding.
[47] As the respondent accepts that the licence was validly issued in the
Cook Islands, there can be no basis on which this Court would look behind and
question the adequacy of that country’s testing regime for the purpose of avoiding
the deeming provisions in the 1999 Rules.
Conclusion
[48] In the circumstances, the applicant is entitled to the declaration sought, which is as follows:
(a) by operation of cl 88, of the Land Transport (Driver Licensing) Rule
1999, the applicant held a New Zealand driver licence of a class entitling him to ride any motorcycle and to drive a motorcar for a period of 12 months after his return to New Zealand;
[49] The applicant also sought “an order quashing the notice forbidding the applicant from driving”. It is not clear from the pleadings whether that notice was issued in relation to the riding of a motorcycle (as that is the only offence in relation to which he said he was issued a notice forbidding him from driving), and that issue was not the subject of argument before me. I therefore simply reserve leave for the respondent to revert to the Court by way of memoranda as to what further relief, if any, should flow from the making of this declaration.
[50] The applicant seeks costs on an indemnity basis. No reasons are given for this. Furthermore, I consider that the respondent’s position was arguable and its case conducted thoroughly and responsibly. There is also, of course, the fact that the first hearing scheduled for this matter had to be vacated at the applicant’s request, at cost to the respondent, and I reserved the issue of costs at that time. For these reasons, I consider that this is a case where limited, if any, costs should be awarded.
[51] However, if the parties cannot agree on costs, then memoranda may be filed in accordance with the following timetable:
(a) the applicant to file any memoranda as to costs within 15 working days of receipt of this decision;
(b)the respondent is to file any memoranda as to costs within 25 working days after the date of this decision;
(c) any memoranda in reply is to be served no later than 30 working days after the date of this decision.
Solicitors:
Christopher Morrall, Christchurch
Crown Law, Wellington
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