Watt v Auckland Transport
[2012] NZHC 1248
•5 June 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-404-109 [2012] NZHC 1248
HUON JAMES WATT
Appellant
v
AUCKLAND TRANSPORT
Respondent
Hearing: 5 June 2012
Appearances: Appellant in Person
N Miller for Respondent
Judgment: 5 June 2012
ORAL JUDGMENT OF TOOGOOD J
HJ Watt, 16 Cromwell Street, Mt Eden, Auckland 1024.
R Gapes/N Miller, Simpson Grierson, Auckland: [email protected]
WATT V AUCKLAND TRANSPORT HC AK CRI-2012-404-109 [5 June 2012]
[1] Huon James Watt has appealed against the refusal of Justices of the Peace to award costs in his favour after an infringement offence to which he had pleaded not guilty in the District Court at Auckland was dismissed by the prosecution during the hearing.
[2] The infringement notice alleged that on 17 March 2011 at 11:07 am, the appellant operated a heavy vehicle on a road when that vehicle was not displaying current evidence of vehicle inspection, an offence against s 34(1)(b) Land Transport Act 1998. This is an offence of strict liability.[1] The evidence of vehicle inspection displayed on the appellant’s vehicle had expired the previous day, 16 March 2011.
[1] R v de Montalk CA157/03, 7 March 2005
[3] During the defended hearing, a witness called by the prosecution gave incorrect evidence as to the policy adopted by Auckland Transport, the prosecuting authority, in relation to periods of grace for such offences, and it was on that basis that the prosecution was withdrawn. After the dismissal of the information, Mr Watt applied to the Justices for an award of costs in his favour, saying that he understood that he had not committed an offence by displaying an expired certificate of fitness only some 11 or so hours after expiry. He had other defences which he had wished to run and he argued that the prosecution against him was malicious.
[4] Mr Watt sought costs of $600, but his claim was rejected by the Justices of the Peace. In giving their reasons for declining to make an award of costs, the Justices said they had considered s 5(2) of the Costs in Criminal Cases Act 1967 (“the Act”) and had decided that the prosecution had been properly brought. In coming to this view, they noted that the appellant had admitted that he had operated the vehicle without a current certificate of fitness.
[5] On appeal, Mr Watt protests both the nature of the prosecution in the District Court and the way it was handled, and also the finding of the Justices that he had in fact committed the offence without properly considering the evidence or giving him
an opportunity to run his defences. He said an award of $536.25 would reflect the
nine hours and 45 minutes he spent defending the case, based on his charge-out rate as a builder of $55 an hour. Mr Watt acknowledged that his claim was based primarily on what he considered was the discretion available under the Act.
Discussion
[6] I am satisfied in reading the Justices’ reasons for declining to award costs that the reference to Mr Watt having admitted committing the offence was really no more than a reference to the fact that the offence was one of strict liability, and in those circumstances (although the Justices did not put it quite this way) Mr Watt might be considered fortunate to have had the prosecution dismissed.
[7] More fundamentally, as I have endeavoured to explain to Mr Watt, it is doubtful that the Justices, or this Court on appeal, had jurisdiction to make an award of costs in his favour.
[8] Mr Watt appeared in person before the Justices and in this Court. Quite apart from the usual rule that a successful self-represented litigant may be awarded disbursements but not costs, it seems clear there is no jurisdiction under the Act to make an award of costs in favour of a successful defendant who is self-represented.
[9] So far as is relevant, s 2 of the Act defines “costs” as meaning “any expenses
properly incurred by a party in ... carrying on a defence ....
[10] Section 5(1) of the Act, so far as is relevant, provides:
5 Costs of successful defendant
(1) Where any defendant is acquitted of an offence or where the information charging him with an offence is dismissed or withdrawn, whether upon the merits or otherwise, ... the Court may, subject to any regulations made under this Act, order that he be paid such sum as it thinks just and reasonable towards the costs of his defence. [Emphasis added]
I emphasise the words “subject to any regulations”.
[11] The Costs in Criminal Cases Regulations 1987 specify, in reg 3, the heads of costs and maximum scales of costs which may be awarded under the Act. Subject to the discretion in s 13(3) of the Act to award costs in excess of the scale, the regulation provides that “the heads of costs” that may be ordered to be paid under the Act are those set out in the Schedule. The discretion in s 13(3) of the Act does not permit the Court to make an award of costs under a head not provided in the Schedule.
[12] The Schedule refers only to fees payable to barristers and solicitors in respect of proceedings under the Summary Proceedings Act 1957.
[13] In R v Meyrick,[2] the Court of Appeal held in respect of costs sought on a successful criminal appeal that it did not have jurisdiction to award costs to a self- represented appellant. Notwithstanding that Meyrick related to an appeal, the same principles apply here.
[2] R v Meyrick [2008] NZCA 45.
[14] There is no jurisdiction to award costs and, even if there were, I consider that the prosecution was properly brought in the sense that the offence was undeniable, being one of strict liability, and that an award of costs under the Act would in any event have been inappropriate.
[15] For those reasons the appeal is dismissed.
[16] Ms Miller applies for costs on the appeal. I recognise that the obstacles facing the appellant were pointed out to him by counsel, who provided him with a copy of the judgment of the Court of Appeal in Re Collier (a bankrupt).[3] But that was a civil case and, although the general principles are applicable here, Mr Watt was founding his case for costs on a misreading of s 13(3) of the Costs in Criminal Cases Act.
[3] Re Collier (a bankrupt) [1996] 2 NZLR 438.
[17] Mr Watt has a genuine sense of grievance about these issues, albeit one founded on a misunderstanding of the law. To award costs against him on this
appeal would be to add insult to injury. The respondent’s application for costs is declined.
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Toogood J