Webb v Police
[2012] NZHC 2379
•14 September 2012
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2012-406-000003
CRI-2012-406-000004 [2012] NZHC 2379
BETWEEN COLIN GORDON WEBB Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 14 September 2012
Counsel: D J Matthews for Appellant
R P Bates for Respondent
Judgment: 14 September 2012
In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 11.30am on the 14th day of September 2012.
RESERVED JUDGMENT OF COLLINS J
Introduction
[1] On 9 December 2011 Mr Webb was convicted by Justices of the Peace in the
Blenheim District Court of committing the following offences:
(1)Failing to comply with the rest time requirements by less than 60 minutes in a cumulative week day, contrary to s 79O(a) and (b) of the Land Transport Act 1998 (the Act);
(2) Failing to deliver a copy of his logbook to his employer within 14 days after the last entry in the logbook, contrary to s 79Q(a) of the
Act; and
WEBB V NEW ZEALAND POLICE HC DUN CRI-2012-406-000003 [14 September 2012]
(3) Producing a logbook omitting a material particular, contrary to s 79R(2)(c)(i) of the Act.
[2] The District Court imposed penalties totalling $1,250, one month’s
disqualification in relation to the s 79O(a) and (b) offences and court costs of
$132.89.
Background and the District Court decision
[3] Mr Webb was stopped by police at 7.25pm on 7 April 2011 whilst driving a truck and trailer unit. The particulars of the vehicle were such that Mr Webb was required to hold a class 5 licence, and keep a logbook. When a driver starts work he or she must record the time started, the location, the registration of the vehicle driven, the hubodometer reading, and details relating to rest breaks. The policeman who stopped Mr Webb found there to be 11 or more omissions in his logbook. Mr Webb explained that he had not started work yet that evening and had not completed entries for that day.
[4] The logbook also revealed rest breaks missing for cumulative working days beginning on 28 March, when 10 hours continuous rest was not recorded in the log books.
[5] The employer copies of logbook entries were found to be still in the logbook at the time Mr Webb was stopped. Mr Webb claimed that, as a self employed person, who is contracted by larger companies, the employer copies are his. The Justices of the Peace found there to be insufficient evidence that Mr Webb was self- employed.
[6] The Justices of the Peace emphasised that correct and complete entries in a logbook are a mandatory requirement, and were satisfied beyond reasonable doubt that the infringements had been proven. The Justices of the Peace issued the infringement fee of $500, and $250 on each of the three other charges, and a one month disqualification of licence in respect of the s 79O charge.
Appeal against convictions
[7] Mr Webb has abandoned his appeal against his convictions for failing to comply with the rest time requirements by less than 60 minutes in a cumulative work day under s 79O(a) and (b) of the Land Transport Act. Thus, he only appeals against the remaining two convictions for:
(1) Failing to accurately complete log book records; and
(2) Failing to deliver a copy of logbook records to the employer within
14 days of completion.
Failing to accurately complete logbooks
[8] Section 30ZF of the Act requires drivers to maintain logbooks in accordance with the Land Transport Rules. Rule 5.2 of the Land Transport Rules: Work Time and Logbooks 2007 sets out the information that must be entered into a logbook. Section 79R(2)(c)(i) of the Act makes it an offence to produce a logbook on demand that omits a material particular, whether or not the driver knows of that omission. The police officer’s evidence and the logbook exhibits clearly show such omissions in the appellant’s log book.
[9] In giving evidence, Mr Webb claimed that using symbols representing “ditto” meant replicating the same entry. The Justices found that even excluding entries marked ditto, there were still 11 or more omissions. On appeal, Mr Webb argues that the Justices erred in not specifying what 11 or more omissions of material particulars related to each daily entry.
[10] The offence in this case is committed if there are one or more material particulars omitted from a logbook. In his submissions Mr Matthews, counsel for Mr Webb, candidly explained that there were eight material particulars omitted from the logbook. This acknowledgement constitutes a complete answer to this part of the appeal. While the Justices may have erred by finding 11 material particulars were omitted from the logbook, the fact there were eight such omissions more than
satisfies the criteria for an offence. Accordingly I am bound to dismiss the appeal against conviction in relation to the failure to complete a logbook as required by s 79R(2)(c)(i) of the Act.
Failing to deliver copy of logbooks to employer
[11] Section 79Q of the Act makes it an offence to fail or refuse to comply with the s 30ZH requirements, one of which is the requirement to deliver a copy of each completed logbook record to the driver’s employer within 14 days of completion. At the District Court hearing, the police officer who stopped Mr Webb explained in his evidence that Mr Webb stated he worked for Ray Hart, and he had not handed in the records because his employer did not want them. The Justices approached their task by deciding that there was insufficient evidence that Mr Webb was self-employed. The Justices then concluded that the offences had been proven beyond reasonable doubt.
[12] Mr Bates points out in his very helpful submissions that:
(1)Constable Jackson’s evidence was that the employer copies from page 2 through until the day he stopped Mr Webb were still in the logbook;[1]
[1] Police v Webb DC Blenheim CRI-2011-006-798, Notes of Evidence, Evidence in Chief, D W Jackson, 9 December 2011 at 10, line 8.
(2)Mr Webb said to Constable Jackson that his employer did not want them;[2] and
(3)Mr Webb admitted in evidence at the defended hearing that he was employed by Ray Hart.[3]
[2] Notes of Evidence, Evidence in Chief, D W Jackson, 9 December 2011 at 10, line 18.
[3] Notes of Evidence at 18, lines 9 and 10 and at 40, lines 10 to 31.
[13] The term “employee” is not defined in the Land Transport Act 1998. However, I draw assistance from the definition of “employee” in the Employment
Relations Act 2000. Section 6 of that Act provides:
6 Meaning of employee
(1) In this Act, unless the context otherwise requires, employee—
(a) means any person of any age employed by an employer to do any work for hire or reward under a contract of service; and
...
(2) In deciding for the purposes of subsection (1)(a) whether a person is employed by another person under a contract of service, the Court or the Authority (as the case may be) must determine the real nature of the relationship between them.
(3) For the purposes of subsection (2), the Court or the Authority—
(a) must consider all relevant matters, including any matters that indicate the intention of the persons; and
(b) is not to treat as a determining matter any statement by the persons that describes the nature of their relationship.
[14] Thus, if guidance is taken from the definition of employee in the Employment Relations Act 2000 and a person is an “employee” if they are employed under a contract of service, in considering whether a person is “employee”, I must consider the “real nature of the relationship” between Mr Webb and his alleged employer. In determining the “real nature of that relationship” I must consider all relevant matters and not treat as determinative any statement by persons that describes the nature of their relationship.
[15] This approach is entirely consistent with the leading judgment on the meaning of “employee” and the difference between a “employee” and a “contractor” in the Supreme Court judgment of Bryson v Three Foot Six Ltd.[4]
[4] Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.
[16] The Supreme Court considered that “all relevant matters” in s 6 included the
following:[5]
[5] At [32].
(1)The written and oral terms of the contract between the parties, which usually contain indications of their common intention concerning the
status of their relationship;
(2)Any divergences from, or supplementation of, those terms and conditions which are apparent in the way in which the contract has operated in practice;
(3)The way in which the parties have actually behaved in implementing the contract; and
(4)Features of control and integration, and whether the contracted person has been effectively working on his or her own account.
[17] I have endeavoured to see if the evidence enables me to apply these criteria to the circumstances of this case. When I attempt to apply these criteria I am not able to determine if, as a matter of law, Mr Webb was an employee at the time of the alleged offending. When this concern is added to my considerable disquiet that the Justices of the Peace approached their task by deciding that there was insufficient evidence that Mr Webb was self-employed, I am left with no option but to conclude that this aspect of the case was not proven by the prosecution beyond reasonable doubt and that this aspect of the appeal must be allowed. I agree with Mr Matthews when he submitted that the Justices of the Peace may not have properly applied the onus of proof in this case.
Appeal against sentence
[18] The District Court imposed the following sentences:
(1) First charge of failing to comply with rest requirements - $250 fine; (2) Second charge of failing to comply with rest requirements - $250 fine
and one month’s disqualification (mandatory requirement under the
Act);
(3) Failure to deliver logbook to employer - $250 fine; and
(4)Omitting 11 or more particulars from logbook - $500 fine (proceeded by way of infringement offence).
[19] Mr Webb argues on appeal that the combined level of fine and infringements is manifestly excessive. The respondent submits that the level of fines imposed by the District Court was well within the available range. It submits that the District Court imposed the level of the infringement offence in respect of the omission of material particulars offence, while on the other charges, it imposed fines of $250 against maximum penalties of $2,500. In respect of the disqualification, the Court only imposed the mandatory disqualification under 79O(b), which it imposed for the minimum period possible.
[20] In my view, the sentences are not manifestly excessive for the following reasons:
(1)The one month’s disqualification penalty for breach of s 79O is mandatory, and the Justices of the Peace prescribed the minimum period possible.
(2)The maximum fine is $2000 for each charge, which is much greater than the $250 imposed in respect of each charge.
(3)The $500 infringement fee imposed for the omission of material particulars was well within the bounds of what was reasonably available in the circumstances of this case.
Conclusion
[21] For the reasons set out above the appeal against conviction is allowed in relation to the offence of failing to deliver a copy of the logbook by Mr Webb to his employer within 14 days after the last entry in the logbook. The appeal against sentence in relation to the remaining matters that he was convicted of by the Justices of the Peace is dismissed.
D B Collins J
Solicitors:
Aspinall Joel, Dunedin for Appellant
Crown Solicitor, Dunedin for Respondent
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