Siemer v District Court at North Shore

[2012] NZHC 3191

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-4532 [2012] NZHC 3191

BETWEEN  JANE SIEMER Plaintiff

ANDTHE DISTRICT COURT AT NORTH SHORE

First Defendant

ANDTHE AUCKLAND COUNCIL Second Defendant

Hearing:         28 November 2012

Counsel:         F Deliu for Plaintiff

D Soper for First Defendant (abides decision of the Court) P Mulligan for Second Defendant

Judgment:      28 November 2012

(ORAL) JUDGMENT OF LANG J [on application for judicial review]

JANE SIEMER V THE DISTRICT COURT AT NORTH SHORE HC AK CIV-2012-404-4532 [28 November

2012]

[1]      In  this proceeding Ms  Siemer challenges by way of judicial review two decisions by Justices of the Peace in a proceeding arising out of an infringement notice issued by the Auckland Council.

Background

[2]      On or about 21 May 2011, the Auckland Council (“the Council”) posted an infringement notice to Ms Siemer alleging she had committed an offence against a Council bylaw by permitting her dog to rush at another person.

[3]      On 22 May 2011, Ms Siemer wrote to the Council indicating she wished to dispute the alleged infringement.   She sought details as to the witnesses to the alleged infringement, details regarding the location where the incident took place and confirmation as to the date and time of the infringement.  In addition, she sought a description of the dog alleged to have been involved in the incident, together with details of the events leading up to it.

[4]      The Council responded to Ms Siemer by letter dated 5 July 2011, indicating that the incident had taken place at 27 Clansman Terrace at 5.30 pm on Thursday

12 May 2011.  The letter also gave details of the dog allegedly involved.  The letter advised, however, that the Council was unable to divulge the name of the witness to the incident, but that the witness would be named in Court should the matter proceed to a defended hearing.   The letter enclosed a statement allegedly taken from the witness, but with the name and address of the witness deleted.

[5]      On 7 July 2011, the Council sent a further letter to Ms Siemer indicating that her request for a Court hearing had been granted, and that the necessary documentation would be sent to the Court.

[6]      Ms  Siemer  maintains  she  heard  nothing  further  about  the  matter  until

13 December 2011, when she was contacted by Ms Wilkinson of the Auckland Council.   Ms Wilkinson advised her that the infringement notice had been called before the Justices of the Peace in the North Shore District Court that morning.  The

Council had sent notice of the hearing to Ms Siemer in a letter dated 4 October 2011. Ms Siemer has always maintained she never received that letter.

[7]      During the telephone conversation, Ms Wilkinson indicated that the matter could be heard before the Justices of the Peace on 21 February 2012.  She asked Ms Siemer whether that would be a suitable date for her to attend the defended hearing. Ms Siemer confirmed she could attend on that date, and asked Ms Wilkinson to provide confirmation of the date and time of hearing in due course.

[8]      Ms Siemer did not hear anything further from the Council or the Court after that.  On the evening of 6 February 2012, Ms Siemer’s husband sent an email to the Council indicating he and his wife had not yet received any details regarding the time and place of the resumed hearing. The Council did not respond to that email.

[9]      On 21 February 2012, Ms Siemer did not appear when the proceeding was called before the Justices again.  At that time, the Justices purported to “reinstate” the infringement notice and penalty “under s 76(b) of the Summary Proceedings Act

1957”.  They re-imposed the original penalty contained in the infringement notice, namely a fine in the sum of $300.  They also ordered Ms Siemer to pay Court costs amounting to $132.50.

[10]     When Ms Siemer learnt that the matter had been dealt with in her absence, she applied for a re-hearing of the notice under s 78B of the Summary Proceedings Act 1957.  The Council then wrote to her indicating it would not oppose a re-hearing being granted given the circumstances leading up to the hearing on 21 February

2012.    The  Justices  dealt  with  the  application,  however,  on  the  papers.    They declined the application without giving any reasons for doing so.  In an email sent to a Court officer at around the time this occurred, one of the Justices said that he and his colleague had discussed the matter, and agreed that as Ms Siemer knew about the hearing on the 21 February and did not attend then, the re-hearing application should be refused.

[11]     Ms  Siemer  now  seeks  judicial  review  of  the  decision  of  the  Justices  to convict her on 21 February 2012.  She also seeks judicial review of the decision of the Justices declining her application for a re-hearing on 12 April 2012.

Decision

[12]     During the course of the hearing, counsel for the Council acknowledged that the Justices had adopted an erroneous procedure when they purported to reinstate the infringement notice and penalty on 21 February 2012.  This is because they did not receive any evidence, or have any factual material before them, that enabled them to conclude  that  the  charge  contained  in  the  infringement  notice  had  been  proved beyond reasonable doubt.

[13]     Counsel has referred me to the judgment of Simon France J in Spiekerman v New Zealand Police,[1]  in which the Judge discussed the procedure that must be followed in circumstances such as the present.  In short, the Justices were required to satisfy  themselves  that  the  charge  had  been  proved  based  on  factual  material provided to them by way of formal proof.[2]

[1] Spiekerman v New Zealand Police HC Wellington CRI-2006-843-20, 25 October 2006.

[2] Ibid, at [8].

[14]     The Council therefore concedes, as it must, that the decision the Justices made on 21 February 2012 is open to review.

[15]     I  consider  that  the  procedure  followed  prior  to  that  point  was  also questionable at best.  Although the Council argues that Ms Siemer was aware of the new hearing date from her telephone discussion with Ms Wilkinson on 13 December

2011, she was not aware of the time and location at which the hearing would take place.    It  is  clear,  from  a  notation  the  Justices  made  on  the  Court  record  on

13 December 2011, that they left it to the Council to advise Ms Siemer of these details.   Notwithstanding this fact, and notwithstanding Mr Siemer’s email to the Council on 6 February 2012, the Council did not take any steps to advise Ms Siemer

of the details of the new hearing.

[16]     There is an additional problem for the Council in relation to the decision the Justices made on 21 February 2012.  This arises out of the fact that they purported to reinstate the infringement notice and penalty under s 76(b) of the Summary Proceedings Act 1957.   No such section appears in the Summary Proceedings Act and, accordingly, the Justices had no statutory authority under that section to make the order they purported to make.

[17]     The manner in which the Justices dealt with the application for a re-hearing is similarly open to question.  They declined Ms Siemer’s application for the re-hearing without giving any reasons for doing so.  This was notwithstanding the fact that Ms Siemer had filed an affidavit explaining how she had never received notice of the earlier hearing, and had also not been advised of the details of the resumed hearing on 21 February 2012.   In addition, had the Justices made the enquiry, they would have learned that the Council did not oppose the application for re-hearing

[18]     I  am  therefore  satisfied  that  the  proceeding  miscarried  again  when  the

Justices declined Ms Siemer’s application for a re-hearing.

[19]     That being the case, the application for judicial review must be granted.  The only issue is whether the matter should now be remitted to the District Court for re- hearing in accordance with the prescribed procedure.   The alternative is to bring matters to an end at this point.

Remedy

[20]     Both Ms Siemer and the Council been put to considerable time, effort and expense by the proceeding thus far.  The offence alleged in the infringement notice is not a particularly serious one, as is demonstrated by the fact that the penalty is a fine of $300.  I therefore consider that the interests of justice will be served if matters are brought to an end at this point.  I therefore grant the application for judicial review, but decline to direct that the proceeding be remitted for re-hearing in the District Court.

[21]     The fine and order for costs imposed by the Justices are quashed.

Costs

[22]     Ms Siemer is the successful party, and as such she is entitled to an award of costs in her favour.  The issue that arises is as to the incidence of those costs. As will already be evident, I consider part of the responsibility for what has happened rests with the processes adopted by the Justices of the Peace.   The Council must also, however,  bear  a degree  of responsibility for what  has  occurred.    It  could  have ensured Ms Siemer was aware of the details of the hearing on 21 February 2012 by responding (at the latest) to the email that Mr Siemer sent on 6 February 2012.  For that reason, I am satisfied the Council should also be required to contribute to Ms Siemer’s costs.

[23]     The District Court has abided the decision of this Court, but its counsel has indicated it wishes to be heard in relation to the issue of costs.  It will therefore be necessary to receive submissions from counsel for the District Court before I make any final order as to costs.   I therefore propose to give counsel seven days within which to reach agreement regarding the issue of costs.  Should that not be possible, I direct that counsel for the District Court is to file a brief memorandum, no more than five pages in length, no later than 12 December 2012 setting out the District Court’s position regarding costs.

[24]     The  Council  is  to  respond  to  that  memorandum  by  5  pm  on  Friday

14 December 2012.  Counsel for Ms Siemer may respond by brief memorandum no later than 5 pm on Tuesday 18 December 2012.  I will then deal with the issue of

costs on the papers.

Lang J

Solicitors:

Amicus Lawyers, Auckland

Crown Law, Wellington

Buddle Findlay, Auckland