Walker v New Zealand Transport Agency HC Auckland CRI 2010-404-418

[2010] NZHC 1204

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-000418

CRI-2010-404-000419

BETWEEN  MAXWELL WALKER & WAIHEKE TOURS LTD

Appellant

ANDNEW ZEALAND TRANSPORT AGENCY

Respondent

Hearing:         13 July 2010

Appearances: M I Walker, Appellant in person

D J Dufty for the Respondent

Judgment:      15 July 2010

RESERVED JUDGMENT OF BREWER J

This judgment was delivered by me on 15 July 2010 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel:
D J Dufty, Meredith Connell & Co, P O Box 2213, Auckland 1140. Fax: [phone]
Email [email protected]

Copy to:

M I Walker, 113 The Strand, Onetangi, Waiheke Island 1081.

WALKER & WAIHEKE TOURS LTD V NZ TRANSPORT AGENCY HC AK CRI-2010-404-000418  15 July

2010

[1]      The appellant, Mr Walker (for himself and for Waiheke Tours Limited (“the appellant  company”)),  appeals  against  findings  by  Justices  of  the  Peace  on

1 December 2009 that they were liable to pay infringement offence fees in respect of the following offences:

1)CRN 09004503845: that on the 20th day of May 2009 at Waiheke he committed an offence against s 40 Land Transport Act 1998 & r.4

Offences & Penalties Regs 1999 & 5.4(5) Land Transport Rule: Operator Licensing in that he drove a shuttle and failed to carry a copy of the New Zealand Transport Agency’s acknowledgement of the registration of the service:

2)CRN 09004503847: that on the 20th day of May 2009 at Waiheke he committed an offence against s 40 Land Transport Act 1998 & r.4

Offences & Penalties Regs 1999 & 5.5(7)(b) Land Transport Rule: Operator Licensing in that he drove a shuttle that was available for hire when there was not carried in the vehicle a schedule containing the information specified in 5.5(6) Land Transport Rule: Operator Licensing 2007.

3)CRN 09004503848: that on the 20th day of May 2009 at Waiheke the appellant company committed an offence against s 40 Land Transport Act 1998 & r.4 Offences & Penalties Regs 1999 & 5.2(4) Land Transport Rule: Operator Licensing in that the appellant company operated a shuttle service and failed to ensure that the licence holder’s name, business location, and telephone number were displayed on the inside  of  the  vehicle  in  a  prominent  position  at  the  front  of  the vehicle, so that a passenger could easily read it.

[2]      The Justices of the Peace found Mr Walker and the appellant company not liable on one further infringement offence each, arising from the same incident as the others.

Facts

[3]      It is necessary to paint the facts with a broad brush.  This is because the Court record tapes were not operating correctly and the evidence record has been compiled by the Justices of the Peace from their notes and their recollections of the case. However, the record that has been produced is quite comprehensive and neither Mr Walker nor counsel for the respondent took issue with any part of it or made any submission that significant evidence had been omitted from the record.

[4]      Additionally,  at  the  hearing  I  asked  Mr  Dufty  to  identify  for  each infringement offence the elements of proof and the evidence relating to each.  I then asked Mr Walker for his comments.  Neither pointed to any evidence not identified by the Justices of the Peace.

[5]      The evidence of David Joseph Hay was that on 20 May 2009 he went by ferry to Matiatia, on Waiheke Island, with his wife.  On arrival they took what he understood to be a taxi to Mudbrick Café for lunch.   The fare was $15.00.   The driver  of  the  vehicle,  Mr  Walker,  dropped  them  at  the  Mudbrick  Café  having arranged that he would take them for an island tour later in the day for a price of $50 less the $15 for the fare to Mudbrick Café.   Mr Hay, 77 years of age, was cross- examined  by  Mr  Walker  and  was  unsure  about  the  timings  of  the  ferry  from Auckland or its arrival time at Waiheke Island.

[6]      The Justices of the Peace then heard evidence from Mr William Mudalier, a warranted enforcement officer for New Zealand Land Transport Agency.  He gave evidence of stopping Mr Walker’s vehicle on Church Bay Road, Waiheke Island at

12.05 pm.   He said that the vehicle had no approved signage on the side of the vehicle but on the left-hand door was written Waiheke Tours Limited with the fleet number and transport service licence number.  He made an inspection of the vehicle and gave evidence to the effect:

I  inspected  the  vehicle  and  noted  the  registration  number,  make,  driver name, address, cell phone number, date of birth, Waiheke Tours Limited, Transport Service Licence number 7404/01.

The ID card was upside down on the middle front seat under papers.  It was not displayed.

He failed to produce his driver’s licence, failed to produce his certificate of registration for the shuttle.  No fare schedule was displayed inside and there was no operator information with the company name, Transport Service Licence number or telephone number that should be displayed inside the vehicle.

[7]      Mr Mudalier said he asked Mr Walker for his approved fare schedule and Mr

Walker told him he did not have it with him at the time.

[8]      Mr Mudalier was cross-examined by Mr Walker on Mr Walker’s assertion that there was in the vehicle a clip with information attached to it, the alleged absence of which was charged under CRN 09004503848.  Mr Mudalier denied that saying at the time of the inspection “there was nothing”.

[9]      Mr Walker also put it to Mr Mudalier that when he had left the Mudbrick Café he had removed the shuttle signs from his vehicle because he intended to operate as a private hire driver having secured Mr and Mrs Hay’s agreement to give them a tour of the island later in the afternoon.  Mr Mudalier replied that he never saw the signs being removed.  He was asked again by Mr Walker:

q.        Did you see me take the signs off the van?

a.At no time did I see you take the signs off.  The signs weren’t there in the first place, so I can’t comment about them being removed.

[10]     In re-examination Mr Mudalier gave evidence that the difference between a private hire and a shuttle is that a private hire is pre-booked and a shuttle has pre- approved fares.   He gave evidence that a private hire cannot be pre-booked by walking up to it.

[11]     On the return trip from the Mudbrick Café to the wharf Mr Mudalier said that he and his party were in sight of the vehicle the entire time.  He said that Mr Walker did not stop to remove signs.  He said;

There were no signs and he did not have the required documents with him.

[12]     Mr Walker then gave evidence.  The relevant parts of his evidence were his contention that when he had dropped Mr and Mrs Hay off he became a private hire vehicle so he did not require a fare schedule or signage.  He said that at the time that he was stopped by Mr Mudalier he was a private hire vehicle with a booking.

[13]     Under cross-examination Mr Walker accepted that when he was parked at the ferry terminal at the time that he picked up Mr and Mrs Hay he was a shuttle operator.

[14]     Mr Walker said that he was carrying acknowledgement of registration but he did not produce it because he was a private hire.  He did not explain that to officers because “they didn’t want to know”.   He said he chose not to give them the registration but he might have given them a receipt for payment and registration.

[15]     When asked whether it was correct that he told the officers that he had no fare schedule in the vehicle Mr Walker replied that he wasn’t required to because he was a private hire with a pre-booking at 2 pm.

[16]     When it was put to him that when he picked up Mr and Mrs Hay he did not have approved signage on the vehicle Mr Walker said that he had but took it off when he got the pre-booking.  He also said that he had his licence displayed on a clipboard in the front.

The Decision by the Justices of the Peace

[17]     The Justices of the Peace first gave reasons why they found Mr Walker not liable  for  the  infringement  offence  which  they  dismissed.    For  the  remaining offences, they said that it was essential to determine whether Mr Walker, as the driver and operator of Waiheke Tours, was operating as a shuttle, or as a private hire operator.  They noted Mr Walker’s evidence that he was operating as a shuttle driver when he picked up  Mr Hay and his wife at  Matiatia and dropped them at the Mudbrick Café .   They accepted that during that journey Mr Walker obtained a booking from Mr and Mrs Hay for a private hire later in the day.  They concluded that that meant that at the time of the LTNZ inspection Mr Walker’s vehicle was pre-

booked for a private tour.   They therefore reasoned that the charges had to be considered in relation to the journey from Matiatia to Mudbrick Café when Mr Walker was operating as a shuttle driver.  They said:

The question is: did Mr Walker convert his vehicle from a shuttle to a private hire vehicle, or was he simply not carrying the required documentation for the activities he undertook as a shuttle driver?

[18]     They discussed the differences in evidence between that of Mr Mudalier and that of Mr Walker and concluded:

We prefer the clear, concise evidence of Mr Mudalier, and find that Mr

Walker’s vehicle was being operated as a shuttle as charged.

[19]     In relation to CRN 3845 the Justices noted Mr Walker’s evidence that he was carrying the necessary document but that he chose not to produce it.  The Justices of the Peace decided that they did not find Mr Walker’s evidence credible on this point and found the charge proven.

[20]     In respect of CRN 3847 the Justices of the Peace focused on Mr Walker’s evidence that he did not have a fare schedule in the vehicle because he was not required to as he was operating as a private hire vehicle when he was stopped by LTNZ.  The Justices of the Peace said that the period when he should have had it was when he operated as a shuttle driver for the Hays earlier.   Accordingly they found the charge to be proved the inference being that they were satisfied that he had not had the schedule with him earlier when he was acting as a shuttle driver.

[21]     In respect of the charge against the appellant company, set out in CRN 3848 the Justices noted that there was no dispute that a copy of the necessary information was not stuck on the inside front window of Mr Walker’s van.   They found that regardless of whether it had been present on a clipboard held by a bulldog clip, as Mr Walker said, it was nevertheless a requirement that the information be displayed in a prominent position so that a passenger could easily read it.   They accepted Mr Mudalier’s evidence that he did not see it when he inspected the van and accordingly the Justices of the Peace found it was not clearly displayed and that the charge was proven.  By inference, the Justices of the Peace were satisfied that the state of the

vehicle when inspected by Mr Mudalier was the same as when it was earlier carrying

Mr and Mrs Hay.

The Appellant’s argument

[22]     The Appellant in his written submissions makes two points:

a)       That  at  the  time  of  the  inspection  by the  LTNZ the  vehicle  was operating  as  a  private  hire  vehicle  and  therefore  the  documents required by a shuttle did not have to be present;

b)The  Justices  of  the  Peace  should  not  have  made  the  findings  of credibility and fact which they did.   He pointed to Mr Mudalier’s evidence in cross-examination that one of the LTNZ officers had been to talk to Mr Hay at Mudbrick Café and that this took: “Just a little while, ten minutes”.  He constrasted this with Mr Mudalier’s evidence in re-examination that “we were in sight of the vehicle the entire time”.

[23]     In his oral submissions Mr Walker amplified these two points.  In support of his submissions he handed up three documents, being a copy from a page of his log book, an undated and unaddressed letter from Land Transport NZ and a copy of an LTNZ booklet called Hire Standards.

The Respondent’s submissions

[24]     The respondent’s submissions are to the effect that in deciding whether the Appellant and the Appellant Company had committed the infringement offences when carrying Mr and Mrs Hay between Matiatia wharf and the Mudbrick Café the Justices of the Peace were entitled to rely on the evidence of Mr Mudalier as to what he found (or did not find) when he stopped Mr Walker and inspected his vehicle after  he  had  left  the  Mudbrick  Café.    That  evidence,  if  found  credible,  when

combined with the evidence of Mr Hay and the admissions of Mr Walker, provided good grounds for the Justices of the Peace to find the offences proved.

[25]     Essentially the Respondent’s submissions are that the Justices of the Peace were able at law to come to the conclusions which they did.

Analysis

[26]     I must look at the evidence which was in front of the Justices of the Peace and decide whether in respect of each infringement offence they were entitled to conclude that the prosecution had proved its case beyond reasonable doubt.  It is not, however, for me to make findings of fact or findings of credibility.  That was the job of the Justices of the Peace.

[27]     CRN  09004503845:  the  prosecution  had  to  prove  the  following  factual matters:

a)        That Mr Walker drove a shuttle; and

b)While    doing    so,    failed    to    carry    a    copy    of    the    NZTA’s acknowledgement of the registration of the service.

[28]     Mr Walker accepted that in carrying Mr and Mrs Hay from Matiatia wharf to

Mudbrick Café he was driving a shuttle.

[29]     Mr Mudalier gave evidence that after he had stopped Mr Walker, following Mr Walker dropping the Hays at the Mudbrick Café, Mr Walker failed to produce his certificate of registration for the shuttle.

[30]   In cross-examination Mr Walker said he was carrying a copy of the acknowledgement of registration but he did not produce it because he was “a private hire”.  The following exchange then took place:

q.        Did you explain this to the officers?

a.        They didn’t want to know.

q.        Why not give them the registration?

a.I didn’t choose to.  I might have given them a receipt for payment of registration.

[31]     For this offence, the issue for the Justices of the Peace was one of credibility: if they found there was a reasonable possibility that Mr Walker was correct in saying he carried the registration but chose not to produce it then they should find in his favour.

[32]     The Justices of the Peace did not find Mr Walker’s evidence on this point credible.    Having seen  and  heard  him,  and  considered  the  evidence,  they were entitled to do so.  The appeal in respect of this offence is dismissed.

[33]     CRN  09004503847:  the  prosecution  had  to  prove  the  following  factual matters:

a)        That Mr Walker drove a shuttle that was available for hire;

b)When there was not carried in the vehicle a schedule containing the information specified in 5.5(6) Land Transport Rule: Operator Licensing 2007.

[34]     It was common ground that when Mr Walker drove Mr and Mrs Hay from

Matiatia wharf to Mudbrick Café he was driving a shuttle that was available for hire.

[35]     The  schedule  referred  to  is  the  vehicle’s  approved  fare  schedule.    Mr Mudalier’s evidence was that when he inspected the vehicle no fare schedule was displayed.  He said that he asked Mr Walker for the approved fare schedule but that Mr Walker said he did not have it with him at the time.  In cross-examination Mr Mudalier accepted that private hire vehicles do not have to provide fare schedules.

[36]     Mr Walker was himself cross-examined on this point:

q.Is  it  correct  you  told  officers  you  had  no  fare  schedule  in  the vehicle?

a.        I wasn’t required to.  I was a private hire with a pre-booking at 2 pm.

[37]     For this offence, the issue for the Justices of the Peace was again one of credibility:  if they found that there was a reasonable possibility that Mr Walker had been carrying the fare schedule in the vehicle when he picked up Mr and Mrs Hay at Matiatia wharf but did not have it at the time when he was stopped because he was then operating a private hire, then they should find in his favour.

[38]     The Justices of the Peace clearly found as a fact that Mr Walker had not had the fare schedule required when he had operated as a shuttle driver for Mr and Mrs Hay.  They were entitled to make that finding.  The appeal in respect of this offence is dismissed.

[39]     CRN 09004503848:   The Prosecution had to prove the following factual matters:

a)        That the appellant company operated a shuttle service;

b)That the appellant company failed to ensure that the licence holder’s name, business location and telephone number were displayed on the inside of the vehicle in a prominent position at the front of the vehicle, so that a passenger could easily read it.

[40]     Mr Mudalier in his evidence said that there was no operator information with the company name, transport service licence number or telephone number displayed inside the vehicle.  When cross-examined by Mr Walker he advised Mr Mudalier;

q.The clip with the sign information was inside the vehicle but not on the windscreen because of moisture inside the window.

[41]     For this offence, the issue for the Justices of the Peace was one of fact: whether  there  had  been  a  failure  to  ensure  that  the  required  information  was displayed on the inside of the vehicle in a prominent position at the front of the vehicle, so that a passenger could easily read it.

[42]     The Justices of the Peace in discussing the charge said:

There is no dispute that a copy of the necessary information was not stuck on the inside front window of Mr Walker’s van.  In his evidence, he explained that it constantly fell off due to condensation on the window.  He produced the label, which he said was held on a clipboard by a bulldog clip, and he said it was in the front of his vehicle at the time.  Mr Mudalier, from LTNZ, denied that this piece of paper was in the front of the van at the time of the inspection.  It is a requirement that this sticker be displayed in a prominent position  so  that  a  passenger  can  easily  read  it,  and  as  we  accept  Mr Mudalier’s evidence that he did not see it, the Court finds that it was not clearly displayed.  We find this charge proven.

[43]     The Justices of the Peace were entitled to make that finding on the evidence before them.  The appeal in respect of this offence is dismissed.

[44]     In summary, I have found that the Justices of the Peace were entitled to make and act on the findings of credibility and fact which I have identified.   I have therefore dismissed the appeals by both appellants against the findings of liability in respect of the subject infringement offences.

[45]     Although not raised by either party, because of ambiguity in the Notice of Appeal I have considered whether the infringement fees were manifestly excessive in the circumstances.  I have concluded that they were not.

……………………….

Brewer J