Sharma v Auckland City Council HC Auckland CRI-2008-404-302

[2008] NZHC 2629

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2008-404-302

CRI-2008-404-303

SATISH SHARMA

Appellant

v

AUCKLAND CITY COUNCIL

Respondent

Hearing:         21 October 2008

Appearances: S Sharma in Person

WJR Kiewik for Respondent

Judgment:      21 October 2008

JUDGMENT OF JOHN HANSEN J

S Sharma, 17 Stoddard Road, Mt Roskill, Auckland 1041

WJR Kiewik, Simpson Grierson, Private Bag 92518, Auckland

SHARMA V AUCKLAND CITY COUNCIL HC AK CRI-2008-404-302 21 October 2008

[1]      Mr Sharma  appeals  against  two  decisions  of  the  District  Court  dated

20 September 2007  and  16 October 2007.    Mr Sharma  has  a  very real  grievance relating to two infringement notices issued against him.  He has a very real grievance with the New Zealand justice system as well.  He, of course, is perfectly entitled to his views but I must deal with this matter on the material that is properly in front of me.

[2]      Mr Sharma  operates  a  small  business.    In  the  course  of  operating  that business he uses a Toyota Hatchback motor car.  On 17 February 2007 in Commerce Street and on 20 July 2007 in Karangahape Road, he parked on a loading zone.  He was issued with an infringement notice for parking on that loading zone.  Since then he has entered into extensive correspondence with members of the Council, Councillors, Justices of the Peace and Members of Parliament.   He wrote to the Court on a number of occasions, assisted by the Grey Lynn Neighbourhood Law Office.  He made it plain that in his view he had not infringed against the relevant Bylaw in any way at all.   He complains that he has been told different things by various Council officers; that he has been extorted by parking wardens whose only job is to collect revenue for the Council; and that various people within the Auckland City and the District Court have lied to him.  He says that the Auckland City and the District Court have worked together in this matter.

[3]      Having been unsuccessful in relation to the two parking tickets he applied for an irregularity to be corrected, which was declined on 22 November 2007.   The appeal was filed on 4 September 2008.  The time given under s 116 of the Summary Proceedings Act 1957 for filing an appeal is within 28 days.  This matter is clearly well out of time.  Mr Sharma explains the delay by saying he was misled by staff of the District Court.   He accepts that the last matter relating to the Court was the decision  I  have  referred  to  on  22 November 2007.     There  is,  therefore,  no satisfactory explanation of any delay from that date forward.

[4]      Notwithstanding that this Court under s 123 of the Summary Proceedings Act has power to extend time for filing an appeal.  The criteria applicable has been set out by this Court on a number of occasions, in particular the decision of Thorp J in

Cleggs Ltd v Dept of Internal Affairs HC AK M1032/84 5 September 1984.  Firstly, there is an onus on the applicant to show that there existed special circumstances why the decisions and sentences should not stand.   Secondly, the discretion was given essentially for the purpose of avoiding miscarriage of justice.  Thirdly, that all the circumstances of the particular case should be considered in deciding whether sufficient grounds had been shown.   Fourthly, one of the matters which must be established was that there was a real likelihood that an appeal would succeed if leave were granted.  Some authorities go so far as to say that the likelihood must be such that the applicant can establish the probability of success.  Now as a lay person, no doubt, Mr Sharma was unaware of those matters but would say that he would satisfy those criteria.

[5]      What is made plain in the letters addressed to Mr Sharma is that the parking infringements stood and should be dealt with by the Court.  They were dealt with on the papers and one can understand why.  The one concern I do have is that it was made  plain  by  Mr English  of  the  Grey  Lynn  Neighbourhood  Law  Office  that Mr Sharma wanted his day in Court and wanted a hearing.   It is for that reason I asked him to detail for me the information he could place before any Court to say that he did not come within the Bylaw.

[6]      The Bylaw reads, in the definition of a goods service vehicle, as:

A  motor  vehicle  designed  exclusively  or  principally  for  the  carriage  of goods.

It is the vehicle’s design and construction that is important under that definition, not its use or intended use.

[7]      Gendall J  was  concerned  with  a  similar  problem  in  a  case  of  Smith  v Wellington City Council HC WNG AP178/00 21 September 2000.   He  recorded there  that  it  must  be  a  question  of  fact  whether  a  motor  vehicle  is  designed exclusively or principally for the carriage of goods.  Design refers to the construction of the vehicle and not its use or intended use: s 2 Land Transport Act 1998.  Further, at [15] of the decision he stated:

If the design is for the carriage of goods then it may be a goods vehicle, but if the design is such that the predominant purpose is for the carriage of passengers then it is not.  The infringement occurs if the vehicle is not of a class specified: Auckland City Council v Hamblin … and it is a matter of fact whether a vehicle falls into that class.  The test must be what is the principal purpose of the design of the vehicle, and if carriage of goods that does not predominate over the other purposes, (passenger carriage being one such purpose), then it is not a goods vehicle.

It is quite clear in this case that a Toyota Hatchback does not fit within the criteria that I have just set out.

[8]      The matter, however, does not end there.  Mr Sharma places great store on a letter of 18 June 2008 from the Auckland City Council’s group manager, Transport - parking.   He noted that if Mr Sharma wished to debate the infringement notices further it should be through the Courts.  He then set out, in the second paragraph, the following:

In order for you to park in a goods service vehicles only loading zone whilst making your deliveries you will need to choose one of the following options, which has been outlined to you previously.

1.Buy a vehicle that is a recognised goods service vehicle such as a truck, utility or van with no rear passenger seats.

2.Modify your existing vehicles by removing or bolting down the rear seats.

3.If requiring less than five minutes, park in a nearby pay and display area.

4.         Park in an unrestricted loading zone.

5.Fold  the  back  seats  down  and  display  a  sign  in  the  window identifying the vehicle as a temporary delivery vehicle.

On  this  occasion  Mr Sharma  places  great  store  on  the  fifth  point.     This  is recommended by the Group Manager – Transport, as it involves minimal effort and virtually no cost.

[9]      Mr Sharma says that on both occasions he was delivering goods and his back seat was folded down.  At least in relation to the record details of the Council, for the offence on 17 February, it states that no goods were seen and that the seats were up.

Mr Sharma says that is a lie by the parking officer.  That is a dispute I cannot resolve in this hearing but it is a matter, for reasons that follow, I consider to be irrelevant.

[10]     The simple fact is that Mr Sharma accepted that there was no sign in his vehicle identifying it as a temporary delivery vehicle.  He complains saying that he had written to the City asking to be supplied with a sticker or sign, similar to a disabled parking one, to allow him to park.  However, when he is driving a car that does not fit the criteria for a goods service vehicle it is for him to do something to distinguish it and make it plain that it is a commercial vehicle.   It is for him to prepare and show the sign.   On his own admission he has not done so.   For that reason it follows that any appeal, if it was heard, would have no chance of success. Accordingly, this appeal must be dismissed and there should be no extension of time because the appeal would have no chance of success.

[11]     Accordingly the application for leave to appeal out of time is dismissed.

[12]     There will be no order for costs on this appeal, but if a similar appeal comes before the Court in the future the Court may well consider awarding costs against the appellant.

…………………………… John Hansen J