South Pacific Leasing Ltd v Auckland Transport

[2013] NZHC 1474

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-121
CRI-2013-404-122

CRI-2013-404-123 [2013] NZHC 1474

BETWEEN  SOUTH PACIFIC LEASING LTD Appellant

ANDAUCKLAND TRANSPORT Respondent

Hearing:                   17 June 2013

Appearances:           S Mark for Appellant Company

J V R James for Respondent

Judgment:                19 June 2013

JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on

19 June 2013 at 11.00 a.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Kensington Swan, Auckland

Copy:

South Pacific Leasing Ltd, Auckland

SOUTH PACIFIC LEASING LTD v AUCKLAND TRANSPORT [2013] NZHC 1474 [19 June 2013]

[1]      Auckland  Transport  issued  infringement  notices  against  South  Pacific Leasing Ltd alleging that the company, being the person in charge of a vehicle, parked the vehicle on a road in excess of maximum time limits marked on traffic signs.

[2]      The  company  gave  the  necessary  written  notice  requesting  a  hearing  in respect of the alleged offending under s 21 of the Summary Proceedings Act 1957 and the hearing took place before Justices of the Peace on 20 March 2013.   The Justices found that the alleged offences had been committed.   The company now appeals.

[3]      Mr Mark, who is a lay person, has represented the company at the hearing of the appeal.  He told me that he was the sole director of the company (which is in the business of leasing motor vehicles) and I allowed him to represent the company.

The facts

[4]      There  were three infringement  notices.   The  first  alleged  that  the motor vehicle, registration number CPY 360, which is owned by the company, was parked on Gladstone Road in Parnell in a location where the maximum time a vehicle could be parked was two hours.  The Justices were satisfied on the basis of the evidence that was called that the vehicle had been parked in a location designated “P 120” for a period of two and a half hours on 13 December 2012.

[5]      The second offence concerned the same vehicle, parked in a P 120 zone at Kenwyn Street, Parnell.  The Justices were satisfied on the evidence that the vehicle had been so parked between 12.36 and 3.25 pm on 20 December 2012.

[6]      The third offence concerned the same vehicle, parked on 7 January 2013 in Kenwyn Street, Parnell, again in a P 120 parking zone.  The Justices were satisfied that the vehicle was so parked between 9.45 am and 12.20 pm.

[7]      The  offences  of  which  the  appellant  was  convicted  were  offences  under r 6.4(1)(a) of the Land Transport (Road User) Rule 2004 which provides that:

(1)       A driver or person in charge of a vehicle must not stop, stand, or park the vehicle on any part of a road contrary to the terms of a notice, traffic sign, or marking that

(a)      indicates  that  stopping,  standing,  or  parking  vehicles  is prohibited, limited, or restricted;...

A breach of this provision is an infringement offence under the Land Transport Act

1998, in accordance with reg 4 of the Land Transport (Offences and Penalties) Regulations 1999.  Consequently, the summary procedure for infringement offences applies in accordance with s 21 of the Summary Proceedings Act.

The issues

[8]      The appellant’s main contention at the hearing was evidently that the officers had not noted down compass bearings on the infringement notice, with the result that he had been unable to determine exactly where the vehicle had been parked in each instance.   The company’s liability is as the “person” in charge of the vehicle and Mr Mark maintained that it is necessary for him to know precisely where the vehicle had been parked in order for him to be fairly informed of the time, place, and nature of the alleged offence, as required by s 140(1)(a) of the Land Transport Act.

[9]      Mr Mark maintains that the infringement notices lacked vital information by not including the compass bearings.   He referred not only to s 140(1) of the Land Transport  Act,  but  also  to  s 17  of  the  Summary  Proceedings  Act.    The  latter provision,  however,  refers  to  the  requirement  that  informations  must  contain sufficient particulars to fairly inform the defendant of the substance of the offence with which he is charged.  It is not relevant where the prosecution is not by way of information, but rather, by way of infringement notice under s 21(b) of the Act.  It can be noted also that in any event, for offences such as those which are the subject of this case, s 140 of the Land Transport Act is a more detailed provision.

[10]     Relevantly, s 140(1)(a) provides as follows:

140      Contents of infringement and reminder notices

(1)      An   infringement   notice   must   be   in   the   form  prescribed   by regulations made under this Act and must contain—

(a)       details of the alleged infringement offence that are sufficient fairly to inform a person of the time, place, and nature of the alleged offence; …

[11]     Regulation 7 of the Land Transport (Infringement and Reminder Notices) Regulations  2012  provides  that  an  infringement  notice  for  a  stationary  vehicle offence must be in a form set out as Schedule 4 to those Regulations.   That form provides for the name of the enforcement authority, an address for correspondence and payment, advice that the infringement fee is payable within 28 days after service of the notice, and various other matters.  Those other matters include the registration number of the vehicle and its make, the date, the day, the time, the name of the officer, the street, the suburb, the “locality”, the “side of street”, and the “distance from sign”.  There is then provision to specify the infringement fee concerned and any relevant towage fee.

[12]     In the present case, in addition to claiming a breach of paragraph (a) of s 140(1), Mr Mark asserted that the failure to fill in the part of the form providing for “side of street” amounted to a breach of the requirement that the infringement notice be in the “form prescribed”, in terms of the opening words of s 140(1).  It appears that the respondent takes the view that it is not necessary for that part of the form to be filled in and that cases arise where it cannot be filled in because its officers are not aware of the compass point.  Mr Mark referred in this respect to a letter that he had received from Auckland Transport, dated 25 January 2013, which included the following paragraph:

Please be advised, the ‘side of street’ noted on the infringement notices is not mandatory to be filled out as the officer will use localities such as street numbers or businesses to establish the location of the vehicle in the street.

Discussion

[13]     There is no doubt from the decision of the Justices that the location of the vehicle on the three separate occasions was adequately described in evidence called from the relevant officers.  Mr Mark did not give evidence and so the Justices were fully entitled to conclude that the offences alleged had been committed.  It rejected Mr Mark’s argument that he had not been fully informed in the infringement notices as to where the car had been parked. At [9] and [10] the Justices said:

[9]       … Your submission is that the Council is required to fairly inform you of where the offences took place, and it is your submission that without compass bearings, you are unable to determine exactly where the vehicle was parked in each instance. As different parts of the streets are governed by different restrictions, you felt it was important that the location of the vehicle is accurate.

[10]      Mr  Mark,  the  Court  does  not  agree  that  compass  locations  are necessary to determine the exact location of the vehicle.  A street address or a building or a landmark and the words “outside” or “opposite” are adequate to locate the vehicle.   Further, the prsence of the restricted parking zone itself is a way of locating where the vehicle must have been parked.   We have credible oral evidence from three wardens that the vehicle was parked in restricted parking zones for longer than the time specified on each of these three occasions. We find all three matters proven.

[14]     In the present case, the officers had noted in their evidence the location of the vehicles  as  being  respectively  “opposite  the  tennis  courts”,  “outside  1  Kenwyn Street, Parnell” and again “outside 1 Kenwyn Street”.  I consider it must be accepted that, in accordance with the decision of the Justices, there was sufficient certainty as to where the vehicles had allegedly been parked at the relevant times.   Although Mr Mark has referred, in submissions, to possible confusion arising from the phrase “opposite the tennis courts” having regard to the particular configuration of the relevant road, he faces the difficulty that there is no evidence in relation to that matter.  He needs to appreciate that an appeal such as this can only be dealt with on the basis of the evidence called in the District Court.

[15]     It should be emphasised that any issue arising from the failure to state the side of the street in the infringement notice could not be important in the circumstances of this case, because the matter proceeded to a defended hearing. Evidence was then called by the respondent which satisfied the Justices that the offences had been committed.  The appellant did not call any evidence.  Given the evidence, conviction on the offences charged was inevitable.

[16]     For  completeness,  however,  I  note  that  Mr  James  submitted  for  the respondent that reg 7 of the Land Transport (Infringement and Reminder Notices) Regulations does not require information to be inserted against every item set out in the form in Schedule 4.  That submission is consistent with the respondent’s letter of

25 January 2013 to which I have already referred.  I doubt that that it is correct.  Its implication is that the enforcement authority could simply pick and chose which

parts of the form were filled in.  That would not be in accordance with the apparent intent of the wording of reg 7.

[17]     I note also that even if the relevant officer is unaware of the compass point, another means could be employed to describe which side of the street the vehicle was parked on.  It appears that in the present case that part of the form was simply left blank.

[18]     However,  I  consider  there  was  sufficient  information  provided  for  the appellant to be fairly informed of the “time, place, and nature of the alleged offence” within  the  meaning  of  s 140(1)(a)  of  the  Act.    Any  non-compliance  with  the requirement to state the “side of street” could be cured by s 204 of the Summary Proceedings Act which provides that documents are not to be held invalid by any Court by reason only of an omission or want of form unless the Court is satisfied there has been a miscarriage of justice.

Result

[19]     The appeal is dismissed.

[20]     I note that in his written submissions Mr James sought that there be an order for costs.   Although I have found the appeal to be without substance, I do not consider this an appropriate case for the award of costs.  There was an omission in the infringement notice form which in my view amounted to a technical non- compliance  with  the  requirements  of  the  Land  Transport  (Infringement  and Reminder Notices) Regulations and it was reasonable for Mr Mark to test the consequences of that by the appeal.