Henderson v Director of Land Transport New Zealand CA133/04 [2005] NZCA 367; [2006] NZAR 629 (19 September 2005)

Last Updated: 20 January 2014

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA133/04

BETWEEN DAVID IAN HENDERSON Appellant

AND THE DIRECTOR OF LAND TRANSPORT NEW ZEALAND Respondent

Hearing: 30 June 2005

Court: O'Regan, Baragwanath and Panckhurst JJ Counsel: M P Reed QC for Appellant

W G Liddell and M J Hodge for Respondent

Judgment: 19 September 2005

_{JUDGMENT OF THE COURT}

A The appeal is dismissed.

2. The appellant must pay to the respondent costs of $6,000 plus usual disbursements.

REASONS

_{(Given by O’Regan J)}

HENDERSON V THE DIRECTOR OF LAND TRANSPORT NEW ZEALAND CA CA133/04 19 September

2005

_{Table of Contents}

Para No

Introduction [1] Statutory scheme [4] Factual background [12] High Court judgment [22] Application for new evidence [30] Issues on appeal [32] Section 89 notice [34] Lapse of demerit points [50] Section 90 notice [55] Bill of Rights [62] Abuse of process [73] General observations [76] Result [80] Costs [81]

Introduction

[1] This is an appeal from a decision of Gendall J, Henderson v Director, Land Transport Safety Authority HC WN CIV-2004-485-736 17 June 2004. Since the date of the High Court decision, the Land Transport Safety Authority has merged with Transfund New Zealand to become Land Transport New Zealand. However, in this judgment, we will refer to the organisation directed by the respondent as the LTSA as that reflects its name at the time of the events leading to this litigation and at the time of the judgment under appeal.

[2] In the High Court, Mr Henderson sought judicial review against the Director in relation to the suspension of his driver licence, and a declaration that the suspension was invalid. His driver licence was suspended because he had accumulated more than 100 demerit points within a two year period. Gendall J dismissed the application.

[3] An interim order was made by consent in the High Court suspending the effect of the s 90 notice pending the outcome of the High Court case, and this order

was extended pending the outcome of the present appeal. However the interim order was not made until 20 days after the service of the suspension order and so part of the suspension has already been served by Mr Henderson.

Statutory scheme

[4] As the case involves a consideration of the statutory scheme relating to the issuing of demerit points and the suspension of driver licences for those who accumulate more than the permitted number of demerit points, at the outset, we will briefly outline the statutory scheme.

[5] The relevant statutory provisions are contained in the Land Transport Act

1998, and the sections to which we refer below are sections of that Act.

[6] Section 90 is the key provision. It says:

90 Suspension of licence or disqualification from driving under demerit points system

(1) If, in any 2-year period, a total of 100 or more demerit points is recorded against a person, the Director must, by notice in writing given to that person, either—

(a) Suspend that person's current driver licence for 3 months; or

(b) If the person does not hold a current driver licence on the date of the giving of the notice, disqualify the person from holding or obtaining a driver licence for 3 months,—

and the suspension or disqualification starts on the date the notice is given to that person.

(2) A person whose driver licence has been suspended under subsection (1) is disqualified from holding or obtaining a driver licence while the suspension is in force.

[7] Section 89 provides an early warning system for a person against whom 50 or more demerit points have been recorded. In that event the section says that the Director “must, when reasonably practicable, send that person a notice in writing” which informs the person of the number of demerit points recorded against him or her and of the consequences of accumulating further demerit points.

[8] Section 89(2) deals with the situation where, as happened in this case, the s 89 notice is not given. It provides:

(2) No suspension imposed under section 90 in respect of a person's driver licence, or disqualification imposed under that section in respect of a person, is invalid merely because—

(a) A notice under subsection (1) was not given to that person or was given to that person after the imposition of that suspension or disqualification; or

(b) A notice given under that subsection was not received by that person or was received by that person after the imposition of that suspension or disqualification.

[9] Section 89(3) provides for the situation where the s 89 notice is sent by post: in that event the notice is deemed to be delivered in the ordinary course of post and service can be proved by proving that the notice was properly addressed and posted.

[10] Section 91 provides for cancellation of demerit points in certain circumstances. In the present case, s 91(1) is relevant. It provides:

(1) When 2 years have elapsed since the commission of an offence in respect of which demerit points were recorded, the entry of the points made in respect of that offence ceases to have effect in relation to the person who committed that offence; but if demerit points were recorded in respect of 2 or more offences committed by that person, the entry ceases to have effect when 2 years have elapsed since the commission of the most recent of those offences.

[11] Section 210 deals with the service of notices (including notices given under ss 89 and 90). It provides for service to be effected by personal delivery, by leaving the notice at the person’s usual or last known place of residence or business or at the address specified by the person in any application or other document under relevant transport legislation, or to be posted in a letter addressed to the person at that place of residence or business or address. In the case of service by post, there is a provision for deemed delivery which is similar to s 89(3), to which we referred in para [9] above.

Factual background

[12] We were provided with detailed accounts of the factual background by counsel, but a brief summary suffices for the purposes of this judgment.

[13] Mr Henderson committed four speeding infringement offences between

1 November 2000 and 7 August 2002. After his second offence on 5 July 2001, he had incurred more than 50 demerit points, thus triggering s 89.

[14] At that stage a warning letter in terms of s 89 was sent to the address for Mr Henderson which was held by the LTSA, being an address in Fendalton Road, Christchurch. This was the address at which Mr Henderson resided when he first obtained a driver licence. It was not, however, the address which he had given to the Police officers who issued the infringement notices on 1 November 2000 and

5 July 2001. The address he gave to the officers was an address in Latimer Square, Christchurch, which was the address at which he resided at the time the offences were committed. He also provided the officer who issued the November 2000 infringement notice with his postal address, a PO Box number in Christchurch.

[15] The evidence before the High Court Judge was that the LTSA did not update its address records on the basis of addresses obtained at the time of the issuing of infringement notices because the addresses given by offenders are sometimes wrong. An LTSA official said that addresses were updated only when a new licence was applied for or when the licence holder provided notification of a change of address.

[16] The upshot of all this was that Mr Henderson did not receive the s 89 notice:

it was returned to the LTSA marked “gone no address”.

[17] The third infringement notice received by Mr Henderson was sent to him by post, to his actual address (Latimer Square). It recorded his speed as 129 km/h an hour (in a 100 km/h zone) but this was disputed by Mr Henderson, who said the speed he had been told by the issuing officer was 119 km/h. A lawyer working as in-house counsel at one of Mr Henderson’s property companies wrote to the Police seeking withdrawal of the notice because of this discrepancy, but this was declined. The fourth infringement notice was issued on 7 August 2002: in this case, the

infringement notice recorded Mr Henderson’s address as being a hotel in Port Vila which, he said, was provided only because, when he told the officer his New Zealand address, the officer insisted on a Vanuatu address. This was apparently because Mr Henderson was, at that time, using a Vanuatu licence.

[18] In late August 2002 Mr Henderson moved from his Latimer Square address to an apartment in an hotel complex in Cathedral Square, Christchurch.

[19] Some time after the fourth offence was committed, the LTSA instructed a process server to serve a “demerit point suspension letter” (a notice under s 90) on Mr Henderson. The instruction specified as Mr Henderson’s residential address the Latimer Square address (not the Fendalton Road address). Of course Mr Henderson had moved by then, and service was not effected, though the precise details of the attempts at service are in dispute.

[20] In December 2003 Mr Henderson obtained a photo driver licence, and provided his PO Box number as a mailing address, and the hotel complex address as his residential address.

[21] In March 2004, another letter of instruction was sent to the process server, asking that the demerit point suspension letter be served on Mr Henderson, and specifying the hotel complex address. Service was not completed by the document server, but was subsequently effected in the early hours of the morning on

1 April 2004 by a Police sergeant. By then, 17 months had passed since the LTSA had given its first instruction to the process server to serve the document on Mr Henderson, and nearly 20 months had passed since the commission of the offence which had led to Mr Henderson’s accumulating more than 100 demerit points.

High Court judgment

[22] In the High Court, counsel for Mr Henderson pursued four claims, namely:

(a) The LTSA did not send him the required warning letter under s 89, and he was prejudiced because of this;

(b) The demerit points which he had accumulated by virtue of the offences on 1 November 2000 and 5 July 2001 had expired pursuant to s 91 before service of the notice under s 90;

(c) The s 90 notice eventually served on him on 1 April 2004 was invalid because it referred to “disqualification”, rather than “suspension” of his driver licence;

(d) The LTSA failed to inform him promptly and in detail of the nature and cause of the charge and the LTSA’s failure to serve the notice was an abuse of process which infringed Mr Henderson’s rights under the New Zealand Bill of Rights Act 1990 (the Bill of Rights).

Section 89 warning letter

[23] Gendall J said that s 89 required that the notice be sent “when reasonably practicable” which meant that the test was directory rather than mandatory. The LTSA was required to make an effort to send a s 89 notice, but non-receipt of it did not invalidate a later suspension. The Judge found that the sending of the s 89 notice to the address held by the LTSA was sufficient to meet the “reasonably practicable” test. Even if that were not so, Gendall J said that s 89(2) would operate to save the subsequent suspension notice.

[24] The Judge was sceptical about Mr Henderson’s claims that the failure to serve the s 89 notice prejudiced him because he did not know the jeopardy he was in when the third and fourth infringements occurred. He noted that the infringement notices specified the number of demerit points incurred, that Mr Henderson would have been aware of his previous offending and that, in any event, s 89(2) contemplated that in some situations suspension would follow without a warning letter having been received, because it provided for service by post to the last known address of the offender.

Lapse of demerit points

[25] Gendall J rejected the argument that the demerit points for the first two offences had lapsed by the time the s 90 notice of suspension was served. He said that the Director was obliged to issue a suspension notice when 100 demerit points have been accumulated in a two year period, and that, when this was done, the demerit points would then be cancelled in accordance with s 91(1). Until the notice is served, the cancellation did not occur. If this were not so, offenders could obtain a benefit of their demerit points lapsing simply by avoiding service, which could not have been the intention of the legislature.

Section 90 suspension notice

[26] Gendall J rejected the argument based on the form of the suspension notice, particularly the reference to “disqualification”. He said that the notice made it clear that the offender’s licence was suspended during the three month period of the disqualification.

Bill of Rights

[27] Gendall J held that s 24(a) of the Bill of Rights did not apply: it dealt with the right to be informed of the nature and cause of a charge, but notices under ss 89 and

90 were not notices of charges being laid: rather they were a warning about an accumulation of demerit points (s 89) and a notice that a statutory mandated punishment was being applied (s 90).

[28] Gendall J did, however, consider that s 27 of the Bill of Rights applied. He said that if he had been of the view that the delay was such that it amounted to an abuse of process, he would have found that there had been a wrongful exercise or failure to exercise statutory powers and proper procedures and that a remedy would then have been available. However he found that the delay in the present case was not so extreme as to render the process flawed to the extent that the Court could intervene by exercise of its powers of judicial review. He did not accept Mr Henderson’s argument that he was prejudiced by the delay, because his business interests were such that he now had a greater need to drive than he would have had

in 2002. The Judge noted that Mr Henderson could apply for a limited driver licence if his circumstances were such that the criteria for such licences were met.

Conclusion

[29] The Judge therefore concluded that there had been no reviewable error of law and no abuse of process and declined to make the declaration sought by Mr Henderson or grant any other relief.

Application for new evidence

[30] At the outset of the hearing, we dealt with an application by the Director to adduce new evidence in this Court. There were two categories of this evidence. The first was evidence correcting the evidence which had been provided in the High Court. In the High Court, a deponent on behalf of the LTSA had said that when Mr Henderson upgraded his licence to a photo licence, he had provided his mailing address (PO Box number) in Christchurch. It transpires, however, that he had also provided his new residential address in the hotel complex in Cathedral Square. Having heard argument from counsel, and notwithstanding submissions in opposition from Mr Reed QC on behalf of Mr Henderson, we determined that it was appropriate to allow the record to be corrected in this way and allowed the evidence to be adduced. This evidence has not, however, had any bearing on our decision on the merits of the case.

[31] The second category of evidence was evidence from the same deponent for the LTSA providing statistics as to the number of driver suspensions occurring under the demerit points scheme in recent years and evidence as to the new practice adopted by the LTSA for the service of suspension notices under s 90. The evidence relating to the numbers of suspension was not fresh, having been available at the time of the High Court trial, and in the absence of any exceptional reason justifying its admission, we declined to admit it. The evidence in relation to the new practice as to service of notices was fresh, since the practice had been implemented after the High Court trial, but did not meet the test of cogency and we declined to admit it for that reason.

Issues on appeal

[32] In this Court Mr Reed pursued the same claims as had been pursued in the High Court. Thus the issues on appeal are the same as the issues before Gendall J, as set out in para [22] above. In addition counsel for the Director supported the judgment of Gendall J on a different ground, namely that judicial review was unavailable in the circumstances of this case. We will deal with that contention in the context of the other issues.

[33] We will deal with the issues on appeal in the same order as they appear in para [22] above.

Section 89 notice

[34] The statutory predecessor of s 89, s 47 of the Transport Act 1962, was originally expressed in unequivocal terms. In Transport Ministry v Hamill [1973]

2 NZLR 663, this Court said that the language of the section was imperative, and a failure to serve a warning notice invalidated a later suspension. In 1983, s 47 was amended by the insertion of the words “where reasonably practicable”, and in a subsequent case, Hicks v Secretary for Transport HC WN CP 218/90 3 May 1990

Jeffries J, a failure to serve a warning notice was found not to invalidate a later suspension. In essence, the Judge found that the posting of a notice to the address of the licence holder provided to the Secretary for Transport under the Transport Act satisfied the requirement to cause a notice to be given “where reasonably practicable”. In fact, the notice was returned “gone no address”, and an attempt at service by a traffic officer failed. In a later case, McLeod v Secretary for Transport HC WN CP 597/91 7 November 1991 Ellis J, it was determined that where service of a notice was, in fact, reasonably practicable, the Secretary for Transport had an obligation to give the notice under s 47.

[35] The phrase “where reasonably practicable” in s 47, as amended in 1983, was changed to “when reasonably practicable” in 1993, and this latter phrase is also used in s 89. It is unclear whether that was intended to change the requirements of the provision in any way or merely tinkering by the drafter. It seems to us to be likely to

be the latter, and we do not think that the obligations of the Director under s 89 are any different from those which applied under the 1983 version of s 47.

[36] Mr Reed argued that the efforts made to serve the s 89 notice on Mr Henderson in the present case were inadequate, and that there had therefore been a failure to meet the requirement of s 89(1) to serve a notice on Mr Henderson when it was reasonably practicable to do so. The large part of his argument was based on the failure of the LTSA to attempt service at Mr Henderson’s then current address in Latimer Square, which was the address that Mr Henderson had given to the Police at the time of the issuing of the first and second infringement notices. He said it was unreasonable to rely on the LTSA’s own records, which contained an address provided some years before when Mr Henderson’s driver licence was issued. This was the Fendalton Road address.

[37] Mr Liddell relied on the decision in Hicks as support for his argument that there was no basis for finding that the service of notice was reasonably practicable in the present case, and therefore no breach of s 89(1). However in that case it is recorded that counsel for Mr Hicks did not seek to argue that the steps taken to attempt service of the notice did not come within the words “where reasonably practicable”. In this case, that argument was pursued by Mr Reed.

[38] In our view, it was reasonably practicable to serve a notice on Mr Henderson in this case. The LTSA was entitled to attempt service initially at the address for Mr Henderson which it had on record. This was the Fendalton Road address. But when that attempt failed, it was not a sufficient response to simply give up as the LTSA appears to have done. It was not difficult, by referring to the details recorded in the infringement notices which had triggered the s 89 notice requirement, to ascertain both a PO Box number and a physical address for Mr Henderson. If that had been done, and service attempted at the Latimer Square address, it seems likely that service would have been effected. Alternatively service could have been effected by post. Service by post of notices under s 89 is permitted under s 89(3), and when a notice is sent to “the defendant’s last known place of residence or business or postal address” it is deemed to be served when it would have been delivered in the ordinary course of post.

[39] The “reasonably practicable” criterion adopted by Parliament anticipated greater effort and resourcefulness on the part of the LTSA to serve s 89 notices than was exhibited in the present case.

[40] That is not the end of the matter, however, because where there has been a failure to serve a s 89 notice, s 89(2) (reproduced at [8] above) comes into play. It seems clear to us that s 89(2) can apply in circumstances where it was reasonably practicable to serve a s 89 notice but there was a failure to do so: if that were not the case, there would seem to be no purpose for s 89(2) because if service is not reasonably practicable, the Director has no statutory obligation to serve a s 89 notice.

[41] Mr Reed referred to the equivalent provision in s 47 of the 1962 Act, s 47(2), as it was after the 1993 amendment. That provision said that no suspension “shall be invalidated on the ground that” a notice under s 47(1) was not given. Mr Reed said that that was stronger language than the present provision, which uses the term “merely because”. He said the present wording contemplated the possibility that a failure to give a warning notice under s 89(1) could, in some circumstances, invalidate a later suspension. We agree that the “merely because” language is more equivocal than the previous formulation.

[42] Section 89(2) and its statutory predecessors appear to have been a direct response to the decision of this Court in Hamill. It makes clear that Parliament contemplated the possibility that an offending driver would have his or her licence suspended when he or she accumulated more than 100 demerit points, even if he or she had not been warned of the consequences in the manner contemplated by s 89. It is clear that failure to serve a s 89 notice when it was reasonably practicable to do so will not on its own invalidate a later suspension. But the use of the term “merely because” does seem to contemplate there may be some remaining cases where a combination of the failure of service and some additional factor or factors are such that a suspension notice should be invalidated. That could only be where something more serious than a “mere” failure to comply with s 89(1) has occurred.

[43] The Court must therefore respond to a multiple message from Parliament:

• that the Director must, when reasonably practicable, send a notice in writing (s 89)

• that mere failure to comply with s 89 does not invalidate suspension

(s 89(2))

• that there will be cases where the non-compliance does have that effect. Parliament has left to the Court the task of articulating when and why failure to

comply will invalidate suspension.

[44] While s 89(2) goes far to exclude from s 89 the principle that where there is a right there must be a remedy (Broom’s Legal Maxims (10^th ed p118)), it does not do so completely. We do not doubt that a deliberate policy to defy s 89, or systemic failure to give effect to it, would justify the Court in adopting an approach analogous with that applied in Bill of Rights cases: that promotion of the rule of law overall may be a higher interest than bringing a particular offender to justice.

[45] In the present case, Mr Reed relied on specific prejudice which he said arose from the failure to serve a s 89 notice, namely that Mr Henderson was not alerted to the jeopardy he was in which may have led him to drive more sedately and/or to challenge the third infringement notice more energetically than he did.

[46] We do not find the first of those bases convincing: Mr Henderson was required by law to drive within the speed limit at all times, and that requirement should be enough to induce him to drive within the applicable speed limit.

[47] Nor do we find the second convincing. The only dispute about the third infringement notice was whether it was for travelling at 119 km/h or 129 km/h. Accordingly there was no basis on which the infringement notice could have been waived by the Police: the best that Mr Henderson could have hoped for would have been that the speed recorded would be reduced to 119 km/h. It that had occurred, Mr Henderson would still have had more than 100 demerit points after the fourth

infringement. So there is no actual prejudice. Even if that were not so, we would not have seen this second factor as sufficient to justify the invalidation of the suspension notice. In effect, we were being asked to accept that Mr Henderson had accepted guilt and paid his fine despite believing no offence had been committed because he was unaware that the demerit points he would accumulate brought him near to the limit of 100 demerit points. We cannot accept that proposition on the evidence before us.

[48] We find that the failure to give a s 89(1) notice in this case does not invalidate the later suspension. Section 89(2) applies. Accordingly this ground of appeal fails.

[49] Mr Reed argued that, even if the failure to serve the s 89(1) notice did not, of itself, invalidate the later suspension, it was one of a number of factors which amounted to an abuse of power by the Director which justified invalidation. We will deal with that argument later.

Lapse of demerit points

[50] We can deal with this ground of appeal shortly. The argument given on behalf of Mr Henderson was that, by the time the notice of suspension was served, the demerit points for the first and second infringements were more than two years old, and that they had therefore lapsed. We agree with the High Court Judge that that argument is incorrect.

[51] The Director has a statutory obligation to suspend the licence of a driver if, in any two year period, a total of 100 or more demerit points is recorded against that driver. Once that obligation has been imposed on the Director, the Director becomes obligated to serve a notice of suspension on the relevant driver. The effect of the suspension is to cancel the demerit points recorded against the driver: s 91(2). The fact that there is delay in effecting service of the suspension notice does not alter the fact that the obligation on the Director to suspend the licence has been activated, and that the suspension will be enforceable once the relevant notice is served. In our view, it is clear that the fact that there is delay in achieving the service of a

suspension notice does not change the fact that the statutory consequence of accumulating 100 points in the two year period will arise.

[52] We agree with Gendall J that the alternative approach suggested by counsel for Mr Henderson would provide a windfall benefit to a person who was able successfully to avoid service of a suspension notice. We do not think that there is any reason to interpret the legislation so that kind of incentive is provided.

[53] In any event, as Mr Liddell pointed out, Mr Henderson’s argument does not take account of the proviso to s 91(1) (reproduced at [10] above). In Mr Henderson’s case, the demerit points arising from the first offence would not lapse until two years had passed since his fourth offence.

[54] This ground of appeal therefore fails.

Section 90 notice

[55] Mr Reed argued that the form of notice served on Mr Henderson under s 90 was defective, because it referred to disqualification rather than suspension. That argument was rejected by Gendall J.

[56] The form of the suspension notice was as follows:

DAVID IAN HENDERSON [ADDRESS]

Notice of Driver Licence Suspension and Disqualification for Excess

_{Demerit Points Driver Licence No. [Number]}

Records indicate that since 19/01/2001 traffic offences shown on the attached list have been recorded against you. As a result, you have accumulated 100 or more demerit points in a period of less than two years. Under the provisions of Section 90 of the Land Transport Act 1998 you are hereby disqualified from holding or obtaining a driver licence for a period of three (3) months starting from the date this notice is given to you.

You are required under section 30(2) of the Land Transport Act to forward your driver licence to this office immediately. You may do this by giving your licence to the Agent who delivers this letter to you, he or she is authorised to forward your licence to this office for you.

During the three-month period of your disqualification your driver licence is suspended and you are unable to drive or to apply for any new licence classes or endorsements. You cannot renew your driver licence or any endorsements that expire during this three-month period until after the period is finished. You are also warned that driving while disqualified is considered a very serious offence and attracts considerable penalties.

...

(Emphasis in original)

[57] Mr Reed argued that the notice was defective because it purported to disqualify Mr Henderson from driving, rather than suspending his current driver licence.

[58] The sanction for a holder of driver licence who has 100 or more demerit points recorded against him or her is suspension of his or her driver licence. Disqualification is the sanction for an unlicensed driver who accumulates 100 or more demerit points. This is clear from a reading of s 90(1), which is reproduced at [6] above. However, s 90(2) says that where a licensed driver has had his or her driver licence suspended under s 90(1) that person is disqualified from holding or obtaining a driver licence during the period of suspension.

[59] We accept that the form of notice served on Mr Henderson was not a model of the drafter’s art, and should have been expressed with greater clarity. But we have some sympathy for the drafter, given the rather confusing relationship between suspension and disqualification in s 90, and in ss 32(1) and 83(1). In any event, we are satisfied that, when read as a whole, the notice conveyed the message to Mr Henderson that his licence was suspended. The heading to the notice makes it clear that it is a notice of driver licence suspension, and the reference to disqualification in the heading is not entirely incorrect because it reflects s 90(2). The first substantive paragraph refers to disqualification rather than suspension of licence, but, although that is only partially correct, we think that the third paragraph redeems the situation by referring to the fact that during the period of disqualification, the recipient’s driver licence is suspended.

[60] Taken as a whole, we think that the notice succeeds in conveying the message required to be conveyed by s 90(1). But we suggest that, if it has not already done so, the LTSA change the wording of its standard form of notice so that it expresses the intention of s 90(1) more accurately.

[61] We therefore reject this ground of appeal.

Bill of Rights

[62] Mr Reed argued that the failure of the LTSA to give the s 90 suspension notice to Mr Henderson for 20 months amounted to an abuse of process. He said that the LTSA’s action (or inaction) amounted to a breach of s 24(a) of the Bill of Rights, s 27 of the Bill of Rights or was an abuse of process which could be remedied under the general power of the Court to prevent abuses. He said the failure to serve the s 89 notice added to this abuse.

Section 24(a)

[63] Section 24(a) confers the right on everyone who is charged with an offence to be informed promptly and in detail of the nature and cause of the charge.

[64] The nature of the jeopardy faced by Mr Henderson in the present case was a mandatory statutory consequence of the series of infringements which he had committed. He was not in a situation where he was charged with an offence: the offences had already occurred and he had been penalised for them. In those circumstances, we agree with the finding of Gendall J that s 24(a) of the Bill of Rights is not engaged in the present case.

[65] We do, however, for completeness record that we do not accept the argument made on behalf of the Director that the infringements in this case were not “offences” for the purposes of s 24(a). That submission was based on the decision in Llewelyn v Auckland City Council HC AK AP 174/97 8 December 1997

Cartwright J. In our view, there is no justification for interpreting the term “offence”

inconsistently with its ordinary meaning, and there is no doubt that a breach of the

Land Transport Act leading to criminal sanction such as fines, suspension of licence, disqualification from driving and the like amount to offences for this purpose.

[66] In that respect, we adopt the analysis of the Supreme Court of Canada in R v Wigglesworth [1987] 2 SCR 541 at 559, where Wilson J, giving the judgment of the majority, observed:

There are many examples of offences which are criminal in nature but which carry relatively minor consequences following conviction. Proceedings in respect of these offences would nevertheless be subject to the protections of s. 11 of the Charter. It cannot be seriously contended that, just because a minor traffic offence leads to a very slight consequence, perhaps only a small fine, that offence does not fall within s. 11. It is a criminal or quasi- criminal proceeding. It is the sort of offence which by its very nature must fall within s. 11.

[67] We would apply the same analysis in the context of s 24(a).

Section 27(1)

[68] Section 27(1) provides:

Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.

[69] Gendall J found that s 27 of the Bill of Rights was engaged in the present situation, but that the circumstances of the case could not be said to amount to a breach of s 27(1) or an abuse of process.

[70] In this Court, Mr Liddell argued that s 27(1) was not engaged unless “the determination in issue is of an adjudicative character”: Chisholm v Auckland City Council CA32/02 29 November 2002 at [32] and Ubilla v Minister of Immigration HC WN CIV 2003-485-2757 19 February 2004 MacKenzie J at [32].

[71] We agree that something in the nature of an adjudicative process is required before s 27(1) is engaged. In this case, the imposition of the suspension of licence was a mandatory statutory sanction which arose automatically at the point that Mr Henderson had 100 or more demerit points recorded against him. The Director

had no discretion as to whether the sanction of suspension of licence would be imposed: rather, the Director had a statutory obligation to arrange for the service of notice informing the person concerned that the statutory sanction had been triggered. There is nothing adjudicative about that process.

[72] Accordingly, we accept the submission made by Mr Liddell that s 27(1) does not apply to the present situation.

Abuse of process

[73] Mr Reed made an alternative argument based on the Court’s inherent power to provide a remedy for an abuse of process. He drew an analogy with this Court’s decision in Martin v Tauranga District Court [1995] 2 NZLR 419, which dealt with a delay in bringing an accused person to trial. In that case, this Court granted a stay of prosecution as a remedy for the delay, which was found to contravene s 25(b) of the Bill of Rights. In Martin v Tauranga District Court, the Court was taking action to deal with an abuse of its own process in circumstances which engaged a particular provision of the Bill of Rights. That is not analogous with the present situation where the Court is being asked to take action to prevent an alleged abuse of power by a statutory official in the performance of a statutory obligation where the Bill of Rights is not engaged. The Court cannot direct that a statutory official refrain from imposing a sanction which is automatically incurred pursuant to a clear statutory provision to that effect in the circumstances of this case.

[74] We have accepted at [44] above that it would be open to the Court in some cases to treat a sufficiently grave breach of s 89 as going beyond “mere” failure to comply with that provision and thus outside the protection of s 89(2). But we do not characterise the Director’s conduct in this case as so high-handed or egregious as to justify that exceptional course, which would be warranted if at all not in the private interest of the appellant but in the public interest of ensuring conformity with the law expressed in s 89.

[75] The ground of appeal based on the Bill of Rights, and the alternative abuse of process argument therefore fail.

General observations

[76] Having disposed of the grounds of appeal put forward on behalf of Mr Henderson, we must dismiss the appeal. We should, however, note for completeness that there was considerable discussion in the submissions before us about the scope of judicial review, and the question as to whether judicial review was available in the present situation.

[77] The difficulty which Mr Henderson encounters in that regard is that the Director exercised no statutory power of decision in the present situation, but rather undertook a statutory function imposed on him by the Land Transport Act. As noted by the majority of this Court in Commissioner of Inland Revenue v Lemmington Holdings Limited [1982] 1 NZLR 517, the exercise of a mandatory obligation by a statutory official does not involve the exercise of an enjoinable power or right in the sense contemplated by the Judicature Amendment Act 1972.

[78] Mr Reed argued that that case must now be read down in the light of the observations of the Privy Council in Mercury Energy Limited v Electricity Corporation of New Zealand Limited [1994] 2 NZLR 385 at 388 (Lord Templeman) and those of Randerson J in Hull v Attorney-General (1998) 12 PRNZ 523 at 525. However, in both of those cases a decision or exercise of a discretion was a component of the action which was the subject of the Court’s scrutiny. That is not the case here.

[79] We do not believe that the present case calls for a review of the authorities in this area, because in our view there is no question that the circumstances of the present case fall outside the scope of reviewable powers in the Judicature Amendment Act 1972. Likewise, we leave the question of the availability of a judicial remedy in a case involving an abuse of power by a public official falling short of malfeasance in public office for another case where the action or inaction of the public official involved is of sufficient seriousness to call for a decision on that issue.

Result

[80] We dismiss Mr Henderson’s appeal.

Costs

[81] We award to the respondent costs of $6,000 plus usual disbursements.

Solicitors:

Cousins & Associates, Christchurch for Appellant

Crown Law Office, Wellington for Respondent