Wallace Corporation Ltd v Waikato Regional Council HC Hamilton CRI 2008-404-000404
[2009] NZHC 2621
•21 December 2009
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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2008-404-000404
CRI 2008-404-000405
CRI 2008-404-000406
UNDER the Summary Proceedings Act 1957
IN THE MATTER OF an appeal under s 116 of the Act
BETWEEN WALLACE CORPORATION LIMITED First Appellant
ANDNEVILLE KEITH CROSS Second Appellant
ANDBARRY JAMES DEW Third Appellant
ANDWAIKATO REGIONAL COUNCIL Respondent
Hearing: 27, 28, 29, 30 October 2009
Further written
submissions: 19 November 2009 – submissions of counsel for Respondent26 November 2009 – reply memorandum of counsel for Appellants
27 November 2009 – further submissions of counsel for Respondent
Counsel: M E Casey QC and B C Parkinson for the Appellant in CRI 2008-
404-404
C T Gudsell QC for the Appellant in CRI 2008-404-405
H B Leabourn for the Appellant in CRI 2008-404-406
T V Clark and S N Cameron for the Respondent on all three appeals
Judgment: 21 December 2009
JUDGMENT (NO 1) OF WILD J
WALLACE CORPORATION LIMITED AND ORS V WAIKATO REGIONAL COUNCIL HC HAM CRI
2008-404-000404 21 December 2009
[1] For decision are two issues that I granted the appellants leave to raise, when the hearing of these appeals began on 27 October. As the issues concern the legality of the prosecution the respondent brought against each of the three appellants, I deal with them in this first, separate judgment.
[2] The issues are:
a) No leave: Is the respondent’s prosecution of each of the three appellants invalid, because the respondent did not obtain leave pursuant to s 21(1)(a) Summary Proceedings Act 1957 (SP Act)?
b)Conviction: Must the convictions entered against each of the three appellants be set aside, because they were not permitted by s 78A SP Act?
Background
[3] The respondent laid an information against each appellant alleging that it had:
... committed an offence against section 338(1)(a) of the Resource Management Act 1991 in that you contravened [or permitted a contravention of] section 15(1)(d) of the Resource Management Act 1991 by ...
[4] It is common ground that the respondent had not, before laying those informations, obtained the leave of a District Court Judge or a Registrar, pursuant to s 21(1)(a) SP Act.
[5] Following a hearing in the District Court over 13 days between February and April 2007, in a decision he delivered on 11 September 2007, Judge McElrea found each of the three appellants guilty and convicted that appellant.
[6] The argument for all three appellants on these two issues was presented by
Mr Casey. I summarise it as follows.
Leave required but not obtained
[7] Section 21 SP Act provides:
21 Summary procedure for infringement offences
(1) Proceedings in respect of an infringement offence may be commenced—
(a)With the leave of a District Court Judge or a Registrar, by laying an information under this Act, or by filing a notice of prosecution under section 20A of this Act; or
(b) Where an infringement notice has been issued in respect of the offence, by providing particulars of a reminder notice in accordance with subsections (4) and (4A), or by filing a notice of hearing in a Court, under this section.
[8] The offence with which each appellant was charged is an infringement offence according to the following legislative scheme:
• “Infringement offence” is defined in s 2(1) SP Act as:
... any offence under any Act in respect of which a person may be issued with an infringement notice.
•Sections 343A-343D Resource Management Act 1991 (RMA) deal with infringement offences. Relevantly, they provide:
343A Infringement offences
In sections 343B to 343D—
Infringement offence means an offence specified as such in regulations made under section 36O(1)(ba).
...
343B Commission of infringement offence
Where any person is alleged to have committed an infringement offence, that person may either—
(a)Be proceeded against for the alleged offence under the Summary Proceedings Act 1957; or
(b)Be served with an infringement notice as provided for in section 343C.
343C Infringement notices
(1) Where an enforcement officer observes a person committing an infringement offence, or has reasonable cause to believe such an offence is being or has been committed by that person, an infringement notice in respect of that offence may be served on that person.
(4) If an infringement notice has been issued under this section,—
(a) ...
(b)proceedings in respect of the offence to which the infringement notice relates may be commenced in accordance with section 21 of the Summary Proceedings Act 1957, and the provisions of that section apply with all necessary modifications.
...
•The consequence of the definition of “infringement offence” in s 2(1) SP Act is that any offence specified in regulations made under s 360(1)(ba) is an “infringement offence”, both under the RMA and the SP Act. Those regulations are the Resource Management (Infringement Offences) Regulations 1999 (passed by Order in Council on 11 October 1999, and which came into force on 1
February 2000 i.e. over three years after ss 343A-343D came into force on 2 September 1996). Regulation 2 states:
2. Infringement offences
Those offences under the Resource Management Act
1991 listed in Schedule 1 are infringement offences for the purposes of sections 343A to 343D of that
Act.
Schedule 1 includes, amongst the offences under s 338(1)(a) specified as an infringement offence:
Contravention of section 15(1)(c) and (d) (discharge of contaminants into environment from industrial or trade premises).
The schedule specifies an infringement fee of $1,000 for such a contravention.
[9] In the result, despite s 338(1)(a) specifying its own penalties in s 339, the offence with which each appellant was charged is also an “infringement offence” for the purposes of the SP Act, entailing alternative penalties, and requiring compliance with s 21 SP Act.
[10] No leave under s 21 SP Act was obtained in this case, and therefore the proceeding against each of the three appellants was brought without jurisdiction, was irregular, and the appeal against conviction should be allowed.
No conviction
[11] Section 78A SP Act provides that a Court which finds a defendant guilty of an infringement offence shall not convict the defendant. The section provides:
78A Conviction not to be recorded for infringement offences
(1) Notwithstanding any other provision of this or any other Act, where in proceedings for an infringement offence ... the defendant is found guilty of
... the offence and the Court would, but for this subsection, convict the defendant, the Court shall not convict the defendant but may order the
defendant to pay such fine and costs and may make such other orders as the Court would be authorised to order or make on convicting the defendant of the offence.
[12] Having found each of the appellants guilty of an infringement offence, the Court convicted each appellant. Those convictions must be set aside, because they were entered in contravention of s 78A.
Respondent’s opposing argument
[13] As I substantially accept this, I will not summarise it. The thrust of the argument is reflected in my decision, and at one or two points I will refer specifically to Ms Cameron’s careful and comprehensive submissions for the respondent.
Decision
[14] The starting point is s 338 RMA, which stipulates that a contravention of s 15
RMA is an offence against the RMA. The section provides:
338 Offences against this Act
(1) Every person commits an offence against this Act who contravenes, or permits a contravention of, any of the following:
(a)Sections ... 15 (which impose duties and restrictions in relation to ... and discharges of contaminants).
...
[15] Section 338 has been in the RMA since its enactment in 1991. It thus well precedes the insertion of ss 343A to 343D into the RMA in 1996. Section 338 continues to operate in conjunction with the penalty provision in s 339:
339 Penalties
(1) Every person who commits an offence against section 338(1), (1A), or
(1B) is liable on conviction,—
(a)in the case of a natural person, to imprisonment for a term not exceeding 2 years or a fine not exceeding $300,000:
(b)in the case of a person other than a natural person, to a fine not exceeding $600,000.
...
[16] Ms Cameron points out that ss 338 and 339 appear under the heading
‘Offences’, whereas ss 343A-343D appear under the separate heading ‘Infringement offences’. Pursuant to s 5 Interpretation Act 1999, she invokes those headings as further indications that ss 343A-343D comprise a stand alone code, leaving intact the
summary proceedings prosecution ‘pathway’ for offences under s 338, including conviction and imposition of penalty under s 339.
[17] In Panela Corporation & Ors v District Court at Whangarei & Anor (HC AK M1885-SW99, 22 May 2000), Salmon J held that the default position is that the offences for which convictions may be entered under s 339 are summary offences, not indictable offences. However, s 66 SP Act entitles a defendant, charged with an offence punishable by imprisonment for a term exceeding three months, to elect to be tried by a jury. Where a defendant so elects, the proceeding continues as if the offence is an indictable offence not punishable summarily: s 66(5). Ms Cameron also draws attention to s 11 Crimes Act 1961, which enables a prosecutor to lay, indictably, an information charging an offence under the RMA.
[18] Turning to the SP Act, the procedure where a person is proceeded against summarily is set out in Part 2 of the Act. Section 12 provides:
12 Commencement of proceedings
(1) Except where the defendant has been arrested without warrant, all proceedings brought under this Part of this Act shall[, subject to sections
20A and 21 of this Act,] be commenced by the laying of an information or the making of a complaint.
...
[19] The next step is ss 343A-343D RMA. These sections apply to a contravention of s 15 RMA because it is an “infringement offence” as defined in s
343A, for the purposes only of ss 343B-343D. That is the effect of the words in s
343A:
In sections 343B to 343D “infringement offence” means ...
For what it is worth, r 2 Resource Management (Infringement Offences) Regulations (set out in [8]) is also worded to make it clear that the definition of “infringement offences” is for the purposes of ss 343A to 343D.
[20] Section 343B gave the respondent the alternatives of (a) proceeding under the
SP Act, or (b) serving an infringement notice under s 343C.
[21] The respondent selected alternative (a), and proceeded under the SP Act. In other words, it proceeded against each appellant by laying an information pursuant to s 12 SP Act. Section 12 is subject to s 21, to which I now turn.
[22] Section 21 SP Act deals with the summary procedure for infringement offences. I have set s 21 out in [7]. Literally interpreted, the definition of “infringement offence” in s 2(1) SP Act (set out in [8]), encompasses all the offences contained in Schedule 1 of the Resource Management (Infringement Offences) Regulations, because s 343C RMA provides that an infringement notice may be issued to a person believed to have committed one of those offences. Those offences include a contravention of s 15(1) RMA – the offence with which the appellants were charged.
[23] If that is the correct interpretation of the s 2(1) SP Act definition of “infringement offence”, then s 21 SP Act applies and leave was required before informations could be laid against the appellants, as Mr Casey submits.
[24] I am sure that was not the outcome Parliament intended.
[25] The development of the minor offences/infringement offence legislation is detailed in the Law Commission’s August 2005 study paper The Infringement System – a Framework for Reform NZLC SP 16 at paras 13-20. Very briefly, a minor offences procedure for certain traffic offences was first introduced in 1955. The first infringement offence regime was enacted in 1968 for overloading and parking breaches. The minor offences regime was amended in 1980, and a wider infringement offices regime introduced by the Summary Proceedings Amendment Act 1987. That introduced ss 21 and 78A SP Act in their present form. That regime was initially confined to traffic offences and the Litter Act 1979, but has progressively been introduced into a range of other Acts, generally directed to securing regulatory compliance. The RMA is one of those Acts.
[26] The point is that s 21 was inserted into the SP Act in 1987, at a time when it applied only to lesser traffic offences and to offences under the Litter Act 1979. An example of the former is driving a vehicle in excess of the applicable speed limit
(r 5.1 Land Transport (Road User) Rule 2004), and of the latter dropping a cigarette packet in the gutter (s 15 Litter Act 1979 – deposit of litter in public place). When s 15 Litter Act 1979 was enacted, the maximum fine for an individual who committed the offence was a fine of $500. It was to offences of that calibre that the infringement offences regime was intended to apply, including the proscription on conviction contained in s 78A.
[27] Subsequently, an increasingly wide range of other Acts were amended by introducing provisions to deal with offences created by those Acts as infringement offences. Sections 343A-343D RMA are an example of that. Throughout this expansion, s 21 SP Act remained unchanged in material respects, and s 78A remained entirely unchanged.
[28] Broadly, and from the outset, Parliament’s intention in introducing the minor offences and infringement offences regimes was to remove, from the summary offence procedures, offences which did not justify or require those procedures. It was never Parliament’s intention to do away with summary offence procedures for those offences which did justify them. Thus, in introducing the Resource Management Amendment Bill (No 3) 1995, which contained (in its clause 56) what are now ss 343A-343D RMA, The Hon. Simon Upton said this:
Clause 56 introduces new provisions that allow local authorities to impose an infringement fee – or instant fine – on a person who commits an offence. The schedule of offences and level of fine will be set by regulation. It is proposed that the maximum fine that may be set by regulation is $1,000. I have to say that that figure has been reached mindful of the level of instant fine proposed under the hazardous substances legislation since there is some commonality across the two Bills. As with speeding tickets, the normal ability to appeal such a fee will apply.
I just diverge from my notes and say that it does seem to me that this is the only sensible cost-effective way of enabling minor breaches to be dealt with swiftly. It is absurd that minor breaches have to go through the full machinations of the law at vast cost, which means they never happen – or, I should say, that enforcement is never undertaken.
((1995) 552 NZPD 10715)
[29] When inserting these “infringement offence” regimes into Acts such as the RMA, Parliament needed to make it clear that they represented an alternative way of dealing with offences created by the Act – offences which were appropriately dealt
with as infringement offences. Parliament needed to make it clear that it was not changing the law so that all offences which, following the amendment, came within the s 2(1) SP Act definition of “infringement offences” had to be dealt with as infringement offences. It needed to make clear that these offences could be dealt with either as infringement offences or as summary offences. Parliament failed to make those matters clear.
[30] Accordingly, there is a gap in the RMA, and Acts similarly amended by insertion of “infringement offences” provisions such as ss 343A-343D RMA. In such a situation, I must try to make the RMA work as I am sure Parliament intended it to work. This is the type of situation to which Cooke P, delivering the judgment of the Court of Appeal in Northland Milk Vendors Association Inc v Northern Milk Ltd [1988] 1 NZLR 530, referred at 537-538:
... the Courts must try to make the Act work while taking care not themselves to usurp the policy-making function, which rightly belongs to Parliament. The Courts can in a sense fill gaps in an Act but only in order to make the Act work as Parliament must have intended. ... The present case is in our opinion another illustration of a hiatus which the Court can legitimately and should bridge. ...
I refer also to Statute Law in New Zealand, J F Burrows, R I Carter, 4th ed., 2009 at
212.
[31] Accordingly, I consider s 21 requires a purposive interpretation. I interpret it as applying where an offence may be and has been dealt with by serving an infringement notice on the offender, as provided under s 343C. So interpreted, s 21 fits harmoniously and sensibly with ss 343A-343D, rather than cutting across those sections. A similar interpretation is required of the definition of “infringement offence” in s 2(1) SP Act, to read:
... any offence under any Act in respect of which a person may be and has been issued with an infringement notice.
[32] Lending powerful support to this interpretation of s 21 SP Act is s 343C(4), which provides that s 21 SP Act applies where the s 343B(a) alternative has been selected, and an infringement notice has been issued. I consider that means s 21 applies only where the s 343B(a) alternative has been followed.
[33] I consider the background to the infringement offences legislation generally, and ss 343A-343D RMA in particular, supports my interpretation of s 21 SP Act. I have referred to this in [25].
[34] I do not intend lengthening this judgment by quoting at length from the Law Commission’s Study Paper, but consider the following paragraphs in particular support my interpretation of the relevant provisions of the SP Act and RMA: paras
46, 63, 72 and recommendation R6, 90, 218 (last bullet point), 221 (last bullet point) and 275 (penultimate bullet point). Of those paragraphs, I rely particularly on the last bullet point under para 218:
•Where the breach is a Tier Two offence as described in chapter 3, and the circumstances of the offence or the defendant are such that the breach is one that should be dealt with by the court, the enforcement officer may decide to commence a summary prosecution. Filing an information for an infringement offence generally requires the leave of the court or a registrar,176 though for a number of regimes, such leave is not required.177 Though there is little evidence that this option is used often by prosecuting authorities, some submissions emphasised its value in respect of infringement offences where there may be a high level of culpability or where the offence is committed by a recidivist defendant.
...
177 See, for example, the Animal Welfare Act 1999, s 161; the Building Act
2004, s 371; the Cadastral Survey Act 2002, s 60; the Civil Aviation Act
1990, ss 57 and 65P; and the Dog Control Act 1996, s 65.
(my emphasis)
[35] Sections 343A-343D RMA are not listed in footnote 177, but could have been. In selecting a sample of legislation, it seems the Law Commission started at the beginning of the alphabet, i.e. with the Animal Welfare Act 1999. To demonstrate my point, I take s 65 Dog Control Act 1996 which provides:
65 Infringement offences
(1) In this Act, infringement offence means an offence specified in
Schedule 1.
(2)Where any person is alleged to have committed an infringement offence, that person may either –
(a) be proceeded against summarily for the offence; or
(b) be served with an infringement notice as provided in section
66.
That section is identical in its effect to s 343B RMA. Amongst the offences specified in Schedule 1 to the Dog Control Act was (and post-2006 amendment still is) s 53(1):
(1)Every person commits an offence and is liable on summary conviction to a fine not exceeding $3,000 who, being the owner of a dog, fails to keep that dog under control.
[36] It cannot have been Parliament’s intention that the relevant dog controlling territorial authority (see s 6) could no longer proceed summarily against a person who committed an offence under s 53(1), without first obtaining leave pursuant to s
21(1)(a) SP Act. Nor can it have been Parliament’s intention that no conviction could be entered for a s 53(1) offence, irrespective of the number of previous occasions on which the offender has committed the offence, and irrespective of whether the dogs have been aggressive and dangerous.
[37] Thus, the Law Commission may be taken to endorse my interpretation that s 21 SP Act applies only where the s 343B(a) RMA (or s 65(2)(b) Dog Control Act) alternative has been followed.
[38] It follows from my interpretation of ‘infringement offence’ in ss 2 and 21 SP Act, that s 78A of the SP Act does not apply to the informations laid by the respondent against each of the three appellants. The “infringement offence” referred to in s 78A excludes the offence with which the appellants were charged.
Bay of Plenty Regional Council v P F Olsen Limited
[39] Although I was aware of Judge Smith’s decision of 13 November on the same issues in Bay of Plenty Regional Counciil v P F Olsen Limited DC Rotorua CRN 080-635-1462, I deliberately wrote this judgment without reference to that decision. I saw benefit in two approaches to these issues, neither influenced by the other. Having now read the Judge’s decision, I note similarities and differences.
First, and perhaps foremost, Judge Smith and I have arrived at the same conclusion. At [56] in Olsen, the Judge states:
... The definition of infringement offence is intended only for the purposes of s 343 A to D and does not redefine all offences under s 338 of the RMA. ...
Earlier, at [39] the Judge concluded:
[39] Accordingly on a plain interpretation of the provisions I have concluded that the proceedings under s 343A to D were never intended to substitute for an election to take informations under s 12 of the Summary Proceedings Act relying directly on s 338. ...
[40] I agree with that, because the introduction of infringement offences created an alternative method of prosecuting the offences contained in s 338 RMA. It did not supplant the existing, summary method. I also agree with Judge Smith’s observation that, if all the offences listed in s 338 RMA are infringement offences, then the lack of the ability to convict or impose more than a $1,000 fine is a wholly disproportionate response to what potentially is very serious offending. That disproportionality is another indication that Parliament never intended the result contended for by PF Olsen Limited, and by Mr Casey in these proceedings.
[41] Perhaps the only major divergence between Judge Smith’s reasoning in Olsen, and mine in this judgment, is that I have identified s 21 SP Act as the source of the legislative hiatus. I have pointed to s 21 SP Act as the problem, because of its assumption that “infringement offences”, as defined in s 2(1) SP Act, will not also be summary offences, as are those in s 338 RMA. If legislative action is necessary to clarify the position, it is amendment of s 21 SP Act, not of any provision in the RMA.
Result
[42] I answer the issues as I have stated them in [2]:
a) No. The prosecution brought by the respondent against each of the three appellants is not invalid. Leave, pursuant to s 21 SP Act, was not required.
b)No. Section 78A SP Act does not apply to the prosecutions brought by the respondent against each of the appellants, and therefore the conviction entered against each does not contravene s 78A.
Solicitors:
Crown Solicitor, Hamilton for the Respondent
Nielsen Law, Hamilton for the Appellant in CRI 2008-404-405
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