(a) the prosecuting authorities were not required to obtain leave from a District Court Judge or Registrar before laying informations against the appellants under the Resource Management Act 1991;

(b) if, contrary to the answer in A(a) leave was required, the convictions are saved by s 204 of the Summary Proceedings Act 1957 and the failure to obtain leave did not result in the proceedings being a nullity;

(c) the convictions entered against all appellants were entered lawfully.

Costs are reserved.

REASONS OF THE COURT

(Given by Harrison J)

Table of Contents

Para No

Introduction

[1] These appeals by Wallace Corporation Ltd (Wallace) and two of its employees, Mr Neville Cross and Mr Barry Dew, are brought with leave from a judgment of Wild J in the High Court at Hamilton. They raise a direct challenge to the validity of convictions for a range of offences under the Resource Management Act 1991 (the RMA).^[1] The appellants assert that the Environment Court had no jurisdiction to determine informations laid by the prosecuting authority, the Waikato Regional Council (the WRC). That is because, in breach of s 21 of the Summary Proceedings Act 1957 (the SPA) leave was not obtained from a District Court Judge or Registrar before the informations were filed.
[2] The appellants say the convictions are a nullity as a result. If they are correct, the consequences will be far reaching. Mr Casey QC for Wallace advised that, to the best of his knowledge, no prosecuting authority has ever applied for leave; and Ms Dunn for the WRC advised that in the past five years prosecuting authorities have commenced over 400 proceedings under the RMA.
[3] The appeals will be determined by our answers to three questions. The first, which requires an examination of the interrelationship between the relevant provisions of the RMA and the SPA, is whether contrary to Wild J’s conclusion the WRC was obliged to obtain leave to file the informations. The second, if leave was required, is whether the proceedings are nevertheless saved by an express statutory provision.^[2] The third is whether in any event the convictions were entered unlawfully by reason of s 78A of the SPA.
[4] Since these appeals were argued Wild J has delivered a second judgment, allowing Wallace’s substantive appeal.^[3] He quashed the convictions entered against the company and its employees on the ground that the WRC had failed to adduce sufficient evidence to prove the charges. However, the questions raised by his leave judgment remain live. We also heard an associated appeal by Ms Carol Down who was convicted of similar offences in the Environment Court and sentenced to community work.^[4] And, we granted leave to appear to an intervener, URS New Zealand Limited (URS), which too has appealed against convictions in the Environment Court. Both Ms Down and URS raise the same challenges on the same grounds as Wallace and its employees. Accordingly, we shall determine the questions arising from Wild J’s leave judgment because our answers will necessarily dictate the result of Ms Down’s appeal and URS’s prospective appeal. The issues raised are of considerable public importance.

Background

(a) Wallace

[5] Wallace owned a meat processing site at Te Kuiti in the King Country. Sometime in the mid 1990s capacitors were removed from the main switchboard at the site and were later buried together with building waste in the foundations of a new building on the same site.
[6] In December 2005, after learning of the burial, the WRC laid informations in the District Court. It charged Wallace and Messrs Cross and Dew with the offence of contravening s 15(1)(b) RMA. It alleged that they discharged (or permitted the discharge of) a contaminant from industrial trade premises when not expressly allowed to do so.
[7] Wallace and its employees denied the charges. There was a defended hearing between February and April 2007. In September 2007 Judge McElrea sitting in the District Court found the charges proved and each appellant guilty.^[5] In November 2008 the appellants were convicted and fined following a hearing on penalty. An enforcement order was also made against Wallace.
[8] All three parties appealed against the convictions and penalties. The appeals were heard in October 2009 following which Wild J delivered his two successive judgments.

(b) Ms Down

[9] Ms Down was charged with her co-offender, Mr William Conway, with six counts of contravening an enforcement order under s 338(1)(b); six counts of permitting the discharge of a contaminant onto land in circumstances which may have resulted in the contaminant entering water under ss 15(1)(b) and 338(1)(a); and two counts of permitting the discharge of a contaminant from industrial trade premises onto land under s 15(1)(d) and 338(1)(a). The offending occurred at premises known as Cash for Scrap in Otara and Mangere in Auckland in 2005 and 2006. Ms Down was convicted of four of the 14 counts following trial before a Judge and jury in the District Court at Auckland on 25 September 2009. Judge Harland sentenced her to 250 hours of community work. Mr Conway, who was the principal offender, was convicted of all charges and sentenced to a term of imprisonment.
[10] Against this brief background, we shall examine the relationship between the relevant provisions of the RMA and the SPA. In particular, the enquiry will focus on the effect of the infringement offence regime progressively introduced to a range of statutes from 1987 and, critically, into the RMA by amendments to that statute from 1996.

Question (1): was leave required?

SPA

[11] The first question is whether the WRC required leave (which was never sought or granted) from a District Court Judge or Registrar to file the informations. If so, Wallace contends, the Environment Court had no jurisdiction to hear the charges and decide on liability and penalty.
[12] Section 21 of the SPA is at the source of this dispute. That section materially 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.

(Emphasis added.)

Significantly, this provision only applies to an “infringement offence” as defined in the SPA, which we shall consider in more detail below.

[13] Section 21, which was introduced by the Summary Proceedings Amendment Act 1987 (the SPAA 1987), provided the standard framework for issuing proceedings for the generic infringement offence regimes later introduced to a number of statutes. Until then, a prosecuting authority was bound to proceed against an alleged offender by the orthodox route of laying a criminal charge, however trivial the offence may have been. The new procedure allowed a prosecuting authority the option of determining the offence by the administrative route of issuing an infringement notice and fixing fines.
[14] We respectfully adopt Wild J’s summary of the relevant background to the infringement offence regime as follows:^[6]

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 offences 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.

[15] The reports of the Parliamentary Debates on the SPAA Bill are brief and generally uninformative. Little was said about the leave provision which found its way into s 21(1)(a). However, the Minister who moved the SPAA Bill’s second reading, the Hon Jonathan Hunt, shed some light on the provision’s purpose, saying this:^[7]

Under the Bill, proceedings for an infringement offence shall be commenced and continued by filing what is essentially a copy of the original infringement notice in a District Court. To avoid circumstances in which ordinary criminal procedures might be used to commence a prosecution when an infringement notice has been issued – such as might occur when a prosecuting authority considers there is some advantage to itself in doing so – the Bill provides that the procedure can apply only with the leave of a registrar or a Judge.

(Emphasis added.)

[16] This statement suggests a degree of drafting or legislative confusion. Contrary to the Minister’s statement, there is no need to obtain leave to proceed under the SPA once an infringement notice has been issued.^[8] Following that event, the prosecuting authority can either issue a reminder notice and file it in the District Court, where the recipient has taken no steps,^[9] or file a notice of hearing in Court in response to the recipient’s request for a hearing on liability or penalty.^[10] We accept, nevertheless, that s 21 as drafted was probably intended to prevent prosecutorial abuses where issuing an infringement notice, not laying an information, was the appropriate method of dealing with offending. Mr Casey does not suggest that Wallace’s alleged offending falls into that category.
[17] The definitions of an infringement notice and an infringement offence, found in s 2 of the SPA, are of central importance. The full text is as follows:

2 Interpretation

(1) In this Act, unless the context otherwise requires,—

...

Infringement fee, in relation to an infringement offence, means the amount fixed as the infringement fee for the offence by or under

the Act under which the offence is created:

Infringement notice means a notice issued under—

(a) Section 42A of the Transport Act 1962; or

(b) Section 14 of the Litter Act 1979; or

(ba) section 41B of the Financial Reporting Act 1993; or

(ca) section 57C of the Gas Act 1992; or

(d) Section 58 of the Civil Aviation Act 1990; or

(da) section 129 of the Plumbers, Gasfitters, and Drainlayers Act 2006

(e) Section 159 or section 159A of the Biosecurity Act 1993; or

(f) section 66 of the Dog Control Act 1996; or

(fa) section 165B of the Electricity Act 1992; or

(g) section 139 of the Land Transport Act 1998; or

(h) section 260A of the Fisheries Act 1996; or

(i) section 162 of the Animal Welfare Act 1999; or

(j) section 357 of the Gambling Act 2003; or

(k) any provision of any other Act providing for the use of the infringement notice procedure under section 21

Infringement offence means any offence under any Act in respect of which a person may be issued with an infringement notice:

(Emphasis added.)

[18] The question lying at the heart of this appeal is whether any provision of the RMA provides for the use of the s 21 SPA infringement notice procedure within the s 2(1)(k) definition. In his detailed submissions in support of Wallace’s appeal, Mr Casey proceeded on the premise that that question must be answered in the affirmative. If he is correct, the offences with which Wallace and the others were charged were infringement offences within the purview of s 21 and leave was required.
[19] Also relevant is s 12 of the SPA which provides:

(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.

(2) Where a defendant has been arrested on any charge and no information has been laid, particulars of the charge against him shall be set out in a charge sheet.

(3) The provisions of this Act shall apply with respect to every entry in a charge sheet as if that entry were an information.

RMA

[20] The RMA was enacted in 1991. Its stated purpose was to promote the sustainable management of natural and physical resources.^[11] It revised and codified the existing law, replacing the Town and Country Planning Act 1964. Part 12 introduced a comprehensive self-contained offence and penalty regime.
[21] The offence provision, s 338, relevantly states:

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 ... discharges of contaminants).

[22] The penalties provision, s 339, relevantly states:

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.

[23] The Resource Management Amendment Act 1996 (the RMAA 1996) incorporated the infringement offence regime into the RMA.^[12] By then the regime had become a feature of a number of statutes. When introducing the Resource Management Amendment Bill (No 3) 1995, which included what became ss 343A–343D of the RMA, the Conservation Minister, the Hon Simon Upton, said:^[13]

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.

[24] Some of the introduced provisions are particularly relevant to the threshold question (see above at [18]). The full text of the infringement offences provision introduced by s 18 of the RMAA 1996 is as follows (including, importantly, s 343C(4) in its further am[14]ded form):¹⁴

343A Infringement offences

In sections 343B to 343D –

Infringement fee

in relation to an infringement offence, means the amount fixed by regulations made under section 360(1)(bb), as the infringement fee for the offence:

Infringement offence

means an offence specified as such in regulations made under section 360(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.

(2) Any enforcement officer (not necessarily the officer who issued the notice) may deliver the infringement notice (or a copy of it) to the person alleged to have committed an infringement offence personally or by post addressed to that person's last known place of residence or business; and, in that case, for the purposes of the Summary Proceedings Act 1957, it (or the copy) shall be deemed to have been served on that person when it was posted.

(3) Every infringement notice shall be in the prescribed form and shall contain the following particulars:

(a) such details of the alleged infringement offence as are sufficient fairly to inform a person of the time, place, and nature of the alleged offence; and

(b) the amount of the infringement fee specified for that offence; and

(d) the time within which the infringement fee must be paid; and

(e) a summary of the provisions of section 21(10) of the Summary Proceedings Act 1957; and

(f) a statement that the person served with the notice has a right to request a hearing; and

(g) a statement of what will happen if the person served with the notice neither pays the infringement fee nor requests a hearing; and

(h) such other particulars as are prescribed.

(4) If an infringement notice has been issued under this section,--

(a) a reminder notice must be in the form prescribed under this Act; and

(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.

(Emphasis added.)

[25] Section 19 of the RMAA 1996 provides for s 360(1) of the RMA to be amended, to authorise regulations:

(ba) Prescribing those offences under this Act that constitute infringement offences against this Act;

(bb) Prescribing forms of infringement notices and any other particulars to be contained in infringement notices, and prescribing the infringement fee ... .

[26] The Resource Management (Infringement Offences) Regulations 1999 (the RMA Regulations) came into force on 1 February 2000. Regulation 2 provides that:

Those offences under [the RMA] listed in Schedule 1 are infringement offences for the purposes of [ss 343A to 343D].

[27] Schedule 1 of the RMA Regulations includes offences under s 338(1)(a). Among them are those which contravene s 15(1)(d), being a “discharge of contaminants into the environment from industrial or trade premises”. It thus became an enforcement option to issue an infringement notice for the offence of discharging contaminants. If this occurs, the proceeding is resolved upon payment by the offender of the prescribed fee ($1000 is the maximum permissible infringement fee for breaches of s 15(1)(d))^[15] within the relevant time period. If the fee is not paid within time (including the period after a reminder notice has been issued), particulars of that notice may be provided, and a court order is deemed to have been made that the defendant pay a fine representing the unpaid infringement fee as well as costs.^[16] It is open to a person served with an infringement notice to request a hearing for an infringement offence. In that case leave is not required but there are restrictions on penalty.^[17]

High Court

[28] Wild J concluded that s 21 of the SPA did not apply and the WRC was not required to obtain leave from a Judge or Registrar to lay the informations for these reasons:

[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....

[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.

[29] Mr Chisnall for the Crown adopts Wild J’s description of the development of the infringement offence regime since its inception as an abbreviated summary procedure dealing with low level nuisance offences.^[18] He endorses the Judge’s conclusion that uncertainty has arisen by virtue of a legislative error. He says Parliament has failed to synthesise consistently the SPA infringement offence regime and the offence provisions contained in newer legislation to which the infringement notice mechanism might be applied in the context of minor breaches. However, Mr Chisnall agrees with Mr Casey’s submission that Wild J erred in his decisive finding that s 21(1)(a) of the SPA should be interpreted as:^[19]

... applying where an offence may be and has been dealt with by serving ... an infringement notice.

[30] Mr Chisnall describes Wild J’s conclusion as “inherently attractive” but says it renders s 343C(4) RMA unworkably circular. Also, he observes that the Judge’s reliance on a purposive approach to construe s 21(1)(a) assumes a legislative gap which the Crown accepts does not exist.
[31] While seeking to uphold Wild J’s conclusion, Ms Dunn disclaims his reasoning that infringement offences under the RMA are also infringement offences under the SPA. In her submission ss 343A to 343D of the RMA are a self-contained regime which allows an informant a procedural choice: it can prosecute for an infringement offence under those sections; or it can lay an information for a summary offence pursuant to s 12 of the SPA, which does not require leave as the charge is not an infringement offence as defined under the SPA. Ms Dunn submits that the statutory definition of an infringement notice includes notices issued under a number of specified Acts which do not include the RMA; this omission is deliberate, she says, and reflects Parliament’s intention that the RMA and the SPA infringement notice procedures should be independent. That is the argument upon which we must now focus.

Analysis

(i) Infringement notices under s 2(1) of the SPA

[32] We agree with MacKenzie J’s observation in Nelson City Council v Howard,^[20] that the legislative provisions governing infringement notices are labyrinthine. We agree also with Messrs Casey and Chisnall, supported by Mr Miles QC for the interveners and Mr Banbrook for Ms Down, that Wild J’s reasoning cannot be upheld. But it does not necessarily follow that we must accept Mr Chisnall’s concession that the Judge’s answer was wrong.
[33] We agree with Ms Dunn that the SPA definitions of an infringement offence and an infringement notice require careful analysis in addressing the underlying question (see above at [18]). It is common ground that the offences with which Wallace and the others were charged were infringement offences within the meaning of s 343A of the RMA. But the s 21(1)(a) SPA leave provision will not apply unless the offences also fall within the definition of infringement offences under s 2(1) SPA. That definition is in turn dependent on whether s 343C of the RMA, which provides for the use of the infringement notice procedure under that Act, can be construed “as providing for the use of the [s 21 SPA] infringement notice procedure” within the meaning of s 2(1)(k). In deciding that issue our primary focus must be on the composition of s 2(1).
[34] In chronological order the first four statutory provisions to be listed in s 2(1) (see above at [17]) were s 42 of the Transport Act 1962, s 14 of the Litter Act 1979, s 32A of the Weights and Measures Act 1987 and s 58 of the Civil Aviation Act 1990. The fifth, s 159 of the Biosecurity Act 1993, provides an example of the process whereby discrete infringement notice provisions are incorporated into the s 2(1) definition.
[35] Section 159 of the Biosecurity Act authorised an inspector to proceed by way of infringement notice for certain clearance offences– for failing or refusing to answer questions about risk goods. But, unlike s 343A of the RMA (see above at [24]), s 159 did not define or provide for infringement offences against the Biosecurity Act. Only the infringement notice procedure was available for the commission of a defined offence.
[36] Section 159(3) is also relevant. Its terms are materially the same as s 343C(3) RMA (see above at [24]). In particular, it states that an infringement notice sent under s 159 must be in the prescribed form. The Biosecurity (Forms) Regulations 1995, since replaced by the Biosecurity (Infringement Offences) Regulations 2010, prescribed the form for an infringement notice under the Biosecurity Act. In accordance with s 168 of the Biosecurity Act, enactments specified in its Fourth Schedule were amended in the manner indicated. In turn, the Fourth Schedule added the words “or s 159 of the Biosecurity Act 1993” to the statutes listed in s 2(1) of the SPA. So, consistent with s 2(1) of the SPA, the infringement notice procedure under s 21 would and did apply to the Biosecurity Act from 1993.
[37] We shall return to the Biosecurity Act and its amendments (see below at [48]). But we cite it here to illustrate the process adopted by the legislature of deliberately amending the SPA definition of an infringement notice by adding a specific infringement notice provision from a nominated statute to the s 2(1) schedule.
[38] The generic definition found in s 2(1)(k) of the SPA – “any provision of any other Act providing for the use of the infringement notice procedure under [s] 21” (see above at [17]) – was introduced by s 2 of the Summary Proceedings Amendment Act 1992, which came into force on 1 September 1993.

(ii) SPAA 2006

[39] Again in chronological order, the next five statutes to be added to the s 2(1) schedule were s 66 of the Dog Control Act 1996, s 139 of the Land Transport Act 1998, s 260A of the Fisheries Act 1996, s 162 of the Animal Welfare Act 1999 and s 357 of the Gambling Act 2003 (see above at [17]). Importantly, these statutory provisions were progressively added to the s 2(1) schedule between 1 March 1999 and 1 July 2004 by amendments made to the statutes themselves contemporaneously with the introduction of the infringement notice regime to each. Infringement notices issued under each provision were expressly brought within the s 2(1) schedule. By contrast, the RMAA 1996 made no such provision when s 343C was enacted.
[40] Section 4 of the Summary Proceedings Amendment Act 2006 (the SPAA 2006), which came into force on or before 9 October 2006, collected the statutes added earlier to the s 2(1) list into a single, coherent amendment. The nature and timing of this amending provision is instructive. It cannot be said that Parliament would have been unaware of or have overlooked s 343C when enacting the SPAA 2006. To the contrary, that statute amended s 343C(4),^[21] while in the same part amending five other relevant infringement notice provisions, being s 159A of the Biosecurity Act, s 65D Civil Aviation Act, s 255A(1) of the Fisheries Act, s 358 Gambling Act and s 141 Land Transport Act.^[22] By then all were listed in the s 2(1) schedule. But s 343C of the RMA was not added.
[41] Also, the nature of the amendment made to s 343C by the SPAA 2006 is material. Before the SPAA 2006 was enacted, s 343C(4) provided as follows:

(4) Where an infringement notice has been issued under this section, proceedings in respect of the offence to which the notice relates may be commenced in accordance with section 21 of the Summary Proceedings Act 1957; and, in that case, the provisions of that section, with all necessary modifications, shall apply.

[42] The SPAA 2006 amended s 343C by adding a requirement that if a reminder infringement notice “has been issued under this section” then it “must be in the form prescribed under this Act [the RMA]” (see above at [24]). This amendment reinforced the existing provision and its emphasis on compliance with the discrete enforcement notice and reminder notice regimes under the RMA, not the SPA. In particular, it retained the existing reference to an infringement notice “issued under this section [s 343C]”. The added provision made no reference to the use of the s 21 infringement notice procedure which is necessary to trigger s 2(1)(k).
[43] Nevertheless, Mr Miles, who was the only counsel to address detailed argument to this point for the appellants (but not in the context of the SPAA 2006), submits that s 21 SPA neither of itself provides for the service of infringement notices nor specifies a form of notice; that it is clear, including from the definition of infringement notice in the SPA, that the issuing of the notice is a step taken under the RMA (the relevant Act by which the offence is created); that the procedure under s 21 is as to what happens after that (especially if the notice is not complied with) as to which s 343C is silent, other than to incorporate the requirements of s 21; and that, as a consequence, the text of the s 2(1)(k) definition suggests that some other provision must provide the mechanism for issuing the infringement notice (s 343C) and that the provision must provide for the use of the subsequent s 21 SPA procedure (s 343C(4)(b)).
[44] Mr Miles submits that s 343C comes within the s 2(1)(k) definition because recourse to s 21 is necessary to provide a mechanism once the infringement notice and reminder notice have been issued. He says that s 21 regulates the payment of the fine, the process whereby the defendant seeks to dispute liability or fails to pay the fine, and other issues. He says that, if the RMA was a standalone procedure, there could be no way to enforce an infringement notice after it was issued.
[45] Mr Miles’ submission ignores the timing and effect of the SPAA 2006 and other statutes incorporating the infringement notice procedure. Section 343C already provided its own discrete infringement notice and enforcement mechanism. It had been operative since the RMA Regulations came into force on 1 February 2000 and was not the s 21 procedure. The only reference to s 21 in s 343C(4), both before and after the 2006 amendment, is to the mode of commencing proceedings where an infringement notice has already been issued. That reference to s 21 must be interpreted in its proper statutory context. Section 343C(4)(b) is not referring to the “[s 21] infringement notice procedure” – the RMA infringement notice procedure had already been completed – but to the new and different step of commencing proceedings. That is to be taken either by providing particulars of a reminder notice (in the prescribed form) or by filing a notice of hearing in the District Court under s 21(1)(b).
[46] As earlier noted, (see above at [25]), the prescribed form of the infringement notice under s 343C is found in the RMA Regulations. Contrary to Mr Miles’ submission:

(a) Schedule 1 of those regulations regulates the payment of fines for infringement notices, not s 21;

(b) Schedule 2, the prescribed form of the s 343C infringement notice, regulates the processes whereby a defendant seeks to dispute liability or fails to pay a fine, not s 21.

(c) Again, unlike s 21, sch 2 fully outlines the nature of the substantive defences available to infringement offences under the RMA.

(d) Schedule 3 provides for the reminder notice, and the consequences of a failure to pay, and was expanded in 2006 to conform with the amendment made to s 343C(4).

[47] The prescribed form of the s 343C infringement notice is relevant in other respects. Regulation 4 of the RMA Regulations stipulates that every infringement notice issued under s 343C must be in the form set out in sch 2; and reg 5 provides that every infringement offence reminder notice issued under the same provision must be in the form set out in sch 3. That is important because s 21(2)(AA) of the SPA provides that, where a form of a reminder notice has been prescribed in any other act or regulations made thereunder for the relevant infringement offence, it must be in that form; it will only be in the general form prescribed by the SPA Regulations if no form has been prescribed under the other act. Moreover, the prescribed forms of the RMA infringement and reminder notices contain their own procedure for dealing with all the comparable steps set out in the balance of s 21 for disposition of the notice – if that is, up to commencement of proceedings in accordance with the procedure required by s 21(1)(b).
[48] It is appropriate at this juncture to return to the example provided by the Biosecurity Act. Section 31 of the SPAA 2006 provides:

31 Amendment to Biosecurity Act 1993

(1) Section 159A of the Biosecurity Act 1993 is amended by omitting subsections (6) to (8) and substituting the following subsections:

“(6) The Ministry may provide particulars of an infringement notice in accordance with section 21(4) and (4A) of the Summary Proceedings Act 1957, after a period of 14 days from the date of service of the infringement notice, or a copy of the infringement notice, if—

“(a) the infringement fee for the offence has not by then been paid to the Ministry at the address specified in the notice (or immediately under subsection (5)); and

“(b) the Ministry has not by then received at that address a notice requesting a hearing in respect of that offence.

“(7) If an infringement notice has been issued and served under this section, the Summary Proceedings Act 1957 applies as if that notice were a reminder notice served under section 21(2) of that Act, and the provisions of that Act apply, with all necessary modifications, to the alleged offence as if—

“(a) the reference in section 21(1)(b) to providing particulars of a reminder notice under that section were a reference to providing particulars of the infringement notice under subsection (6) of this section; and

“(b) subsection (6) of this section were in the place of section 21(3); and

“(c) the reference in section 21(3A) to the particulars of a reminder notice not having been provided under section 21(3) were a reference to the particulars of the infringement notice not having been provided under subsection (6) of this section; and

“(d) every reference in section 21(4), (4A), and (4B) to particulars of a reminder notice were a reference to the particulars of an infringement notice and every reference to the contents of a reminder notice were a reference to the contents of an infringement notice; and

“(e) the reference in section 21(4)(a) to parts of the reminder notice were a reference to parts of the infringement notice; and

“(f) the reference in section 21(4C) to particulars of a reminder notice were a reference to particulars of an infringement notice; and

“(g) the reference in section 21(4C) to the reminder notice were a reference to the infringement notice; and

“(h) the reference in section 21(5) to the verification of particulars of a reminder notice provided under section 21(3) were a reference to the verification of particulars of an infringement notice provided under subsection (6) of this section; and

“(i) the reference in section 21(6)(b) and in section 21(10)(a) to a period of 28 days after the service of a reminder notice were a reference to the period of 14 days after the service of the infringement notice; and

“(j) each reference in section 21A and section 78B to a reminder notice were a reference to an infringement notice and each reference in section 21A and section 78B to the reminder notice were a reference to the infringement notice; and

“(k) the references to reminder notices in the definition of ‘defendant’ in section 2(1), and in section 212, and in any other relevant provisions of that Act or regulations made under that Act, were references to the infringement notice.”

[49] The full text of the s 31 SPAA 2006 amendment illustrates the direct relationship between s 159A of the Biosecurity Act and the detailed terms of s 21 of the SPA relating to reminder notices. The reminder notice provisions applying to infringement notices issued under the Biosecurity Act must accord with s 21. By contrast, as noted, the reminder notice provisions applying to infringement notices in s 343C were in a self-contained prescribed form, as authorised by s 360(1)(bb) RMA, from early 2000. That is the reason why it was unnecessary to include s 343C within the s 2(1) schedule.
[50] In these circumstances we infer that Parliament deliberately omitted s 343C from the s 2(1) SPA schedule. The statutory structure is consistent with a conscious legislative consideration about whether to include a particular infringement notice provision. As this case shows, inclusion or exclusion has important consequences. From the time of the time of the RMA’s enactment in 1991, prosecuting authorities were empowered to proceed in the usual way under s 12 of the SPA by laying informations for what later became classified as infringement offences. Leave was not required. Neither counsel for Wallace nor the interveners identified any instance of prosecutorial abuse that might have justified a radical change contemporaneously with the subsequent introduction of a procedure designed to allow disposition of minor offences through an administrative mechanism rather than legal proceedings. In our judgment Parliament’s apparently deliberate exclusion of s 343C from the s 2(1) schedule is inconsistent with a construction that seeks to bring it within the SPA definition of an infringement notice through the default route of s 2(1)(k).

(iii) Since 2006

[51] Since 2006, s 41B of the Financial Reporting Act 1993, s 57C of the Gas Act 1992, s 129 of the Plumbers, Gasfitters and Drain Layers Act 2006 and s 165B of the Electricity Act 1992 have been added to the s 2(1) schedule. All provide for the infringement notice regime.
[52] The Financial Reporting Amendment Act 2006, which came into force on 18 June 2007, provides an example of how that process occurred. Section 20 introduced the infringement notice procedure as ss 41A, 41B, 41C and 41D. The offences created by ss 38(b) and 39 of that Act, relating to delivery of a copy of financial statements together with an auditor’s report to the Registrar, became infringement offences as defined by s 4. The prescribed form of the infringement notice issued under s 41B, introduced by the Financial Reporting (Fees and Forms) Regulations 2007 in accordance with s 42B, is relatively brief compared to the form prescribed by the RMA Regulations. Like comparable statutes, s 22 of the Financial Reporting Amendment Act provided for a specific amendment to s 2(1) of the SPA to include notices issued under s 41B. We shall return to s 41A shortly (see below at [58] and [59]).
[53] Ms Dunn has identified 12 statutes additional to the RMA which provide for the infringement notice regime but which are omitted from the s 2(1) SPA schedule: they are the Building Act 2004, the Cadastral Survey Act 2002, the Hazardous Substances and New Organisms Act 1996, the Health and Safety in Employment Act 1992, the Local Government Act 1974 and the Local Government Act 2002, the Marine Transport Act 1994, the Motor Vehicle Sales Act 2003, the Radio Communications Act 1989, the Railways Act 2005, the Sale of Liquor Act 1989 and the Summary Offences Act 1981. In each case Parliament had a specific opportunity to add the infringement notice provisions to the s 2(1) SPA schedule, as it had done with the other nine statutes added since 1 March 1999, but did not do so.
[54] Ms Dunn observes that, with two exceptions, the statutes referred to – both those included within and excluded from the s 2(1) schedule – provide a maximum penalty of a fine on summary conviction for an infringement notice. The exceptions are the Hazardous Substances and New Organisms Act 1996 and the Dog Control Act 1996; both allow a maximum penalty upon conviction of three months’ imprisonment. By comparison, the maximum penalty upon conviction for offending under the RMA is two years’ imprisonment. Also, the RMA is the only statute allowing a right to elect trial by jury for a nominal infringement offence so defined within the Act. We agree with Ms Dunn that it would be most unusual if Parliament required a prosecuting authority to obtain leave before issuing proceedings in these circumstances.
[55] Ms Dunn also observes that, of the relevant statutes omitted from the s 2(1) schedule, the Railways Act and the Health and Safety in Employment Act do not contain infringement notice procedures. For example, ss 99 onwards of the Railways Act provide for the infringement offence and notice procedure. The notice is to be in the prescribed form. But the Act does not authorise regulations which would prescribe a form. And s 100(1) states:

(1) A reminder notice may be in a form prescribed by regulations made under this Act or by regulations made under the Summary Proceedings Act 1957.

(2) However, if the former reminder notice is prescribed under this Act, the reminder notice must contain ...

[56] We agree with Ms Dunn that s 99 of the Railways Act, the infringement notice provision, and s 100, providing for reminder notices which are part of the infringement notice regime, fall squarely within the s 2(1)(k) SPA definition of provisions of another statute which provide for the use of the s 21 procedure and are examples of how the generic definition would operate.
[57] Mr Casey referred us to statutes included in the s 2(1) schedule which expressly negate the s 21 leave requirement. For example, s 41A of the Financial Reporting Act 1993 provides:

41 A Infringement offences

(1) If a person is alleged to have committed an infringement offence, that person may either—

(a) be proceeded against summarily for the alleged offence under the Summary Proceedings Act 1957; or

(b) be served with an infringement notice as provided in section 41B.

(2) Despite section 21 of the Summary Proceedings Act 1957, leave of a District Court Judge or a Registrar of a Court to lay an information is not necessary where the Registrar proceeds with an infringement offence summarily.

(Emphasis added.)

[58] Mr Casey draws a distinction between the seven scheduled statutes which contain an exclusion to this effect and the balance which do not. He says this division shows the legislature has turned its mind to the requirement for leave and selectively applied an exception. Thus, it must be presumed to intend that s 21 has full force where it has not been excluded, such as under s 343C. However, s 41(2) of the Financial Reporting Act is no more than evidence of a legislative decision to exclude the application of s 21 to a particular statute at the time of its addition to the s 2(1) schedule. Mr Casey’s submission begs the question of whether s 2(1)(k) extends to s 343C; if it does not, there would be no purpose in specifically incorporating a s 21 exclusion.

(iv) Summary

[59] In summary, we agree with Ms Dunn. Section 2(1)(k) of the SPA does not include infringement notices issued under s 343C of the RMA. In our judgment, s 343C does not provide “for the use of the [s 21] infringement notice procedure”. It provides its own procedure for issuing infringement notices, self contained within the terms of s 343C and the prescribed form. It is analogous to the s 21 procedure. But it stands alone, independently of that provision. The s 21 procedure must refer to and be limited to infringement notices issued in accordance with the form prescribed by regulations made under the SPA, not under the RMA.
[60] It follows that infringement offences under the RMA are to be prosecuted by laying an information in the usual way, in accordance with s 343B(a) (see above at [24]), and proceeding under s 12 SPA. There is nothing in the infringement offences provisions of the SPA which disturbs the power conferred by the RMAA 1996 to prosecute such offences by laying an information. Leave was not required.
[61] Accordingly, our answer to the first question is that neither the WRC nor the other prosecuting authorities were obliged to obtain leave from a District Court Judge or a Registrar before filing the informations against the appellants.

Question (2): are the proceedings nevertheless saved?

Section 204

[62] If our answer to the first question is wrong, the second question is whether, despite the WRC’s omission to obtain leave, the whole process from laying informations to determining liability is nevertheless saved by s 204 of the SPA. Wild J did not consider this question given his primary finding that leave was not required.
[63] Section 204 materially provides:

204 Proceedings not to be questioned for want of form

No information, complaint, summons, conviction, sentence, order, bond, warrant or other document, and no process or proceeding shall be quashed, set aside or held invalid by any District Court or by any other Court by reason only of defect, irregularity, omission, or want of form unless the Court is satisfied that there has been a miscarriage of justice.

[64] Ms Dunn and Mr Chisnall rely on s 204; Messrs Casey, Miles and Banbrook argue that it does not apply to save the convictions. The latter three counsel all say that the WRC’s failure to obtain leave deprived the Court of jurisdiction to hear the charges and the prosecution process is a nullity.
[65] It is appropriate to refer to two factors at this introductory juncture. One is that counsel for the appellants and intervener do not suggest that the WRC’s omission resulted in a miscarriage of justice. While this factor is not of itself sufficient to invoke s 204, given its status as a proviso, its existence is important. The other is that none of the appellants raised the objection now taken at any time during the hearings in the Environment and District Courts.

Legal principles

[66] This Court has considered s 204 on a number of occasions. While there is no directly comparable English provision of which we are aware, decisions there have influenced the provision’s construction. Some cases have considered the distinction between jurisdictional and procedural omissions. It is now settled that the section will not save a want of process which is clearly fundamental to jurisdiction, such as where a Court hears a case which it has no power to determine.^[23] A graphic example is of a Magistrates Court purporting to try a count of murder.^[24] Here, as we shall explain, the inquiry focuses on whether the defect has the effect of reducing the process to the status of a nullity, considered primarily by reference to what Parliament intended were to be the consequences of the WRC’s omission.
[67] In this case, Mr Miles submits, a prosecuting authority’s omission to obtain leave from a Judge or Registrar is not a mere procedural irregularity. It is, he says, a failure to satisfy a fundamental prerequisite to laying an information. It is thus an omission of jurisdiction, not of process, and there is nothing for s 204 to remedy.
[68] Mr Miles relies principally upon Somers J’s statement for this Court in R v O’Connell that:^[25]

Accordingly leave is necessary before a prosecution is commenced ... If such leave is not given then prosecution must fail. Sometimes the necessity for leave or consent to commence a prosecution is described as a matter of form; see Price v Humphries [1958] 2 QB 353 ... but if at the end of the day it is found that the necessary leave has not been given the prosecution has not been commenced as required by law and the Court cannot enter a conviction: see eg R v Bates [1911] 1 KB 964; R v Ostler and Christie [1941] NZLR 318. It follows that a defendant to an information requiring such a legal consent is entitled to question its existence.

[69] However, this statement must be read in context. Somers J was referring principally to two English decisions and a New Zealand decision which preceded s 204. The English cases decided prior to that point are distinguishable. The statutory provisions creating the offences specifically prohibited the commencement of proceedings without the consent of a public law officer – either the Attorney-General (in R v Bates^[26]) or the Director of Public Prosecutions (in R v Angel^[27]) – or of a Minister of the Crown (in Price v Humphries^[28]). The consent of a nominated person, whose apparent function was to take account of the broader public interest, was an essential prerequisite to issuing a proceeding.^[29] Likewise, in Ostler’s case the relevant regulation prohibited the commencement of a prosecution “except with the written consent of the Attorney-General”. This Court deemed such consent given to substantive charges to extend to charges amended at trial of attempting to commit the same crimes.^[30]
[70] O’Connell itself was in a similar category. The defendant was charged with possession of indecent documents. Section 29 of the Indecent Publications Act 1963 provided that “no prosecution for an offence ... shall be commenced except with the leave of the Attorney-General”, which could be delegated down to the level of the Police Inspector. The information contained an endorsement that the District Commander of Police at Christchurch had given leave. Both the High Court and this Court took notice of the fact that a District Commander was of a rank higher than an Inspector, and this Court provisionally approved the High Court’s conclusion that the endorsement could be construed as implying that the District Commander was purporting to act pursuant to delegated authority. As it had been admitted that a proper instrument of sub-delegation had been signed by the Commissioner, the Court was satisfied that the omission of any words of delegation was at worst a “defect, irregularity, omission or want of form” within the meaning of s 204. The Court also noted that the point taken on appeal was a “pure technicality,” having “no bearing on the defendant’s guilt”.^[31]
[71] In Hall v Ministry of Transport, this Court cited O’Connell as authority for the proposition that the absence of necessary leave to commence a prosecution would fall outside the protection of s 204.^[32] Hall is significant, however, for other reasons. Cooke P, drawing on earlier authority,^[33] identified these principles which are relevant to the application of s 204:

(a) full effect should be given to the ordinary and natural meaning of the language of s 204;

(b) if the information, process or conviction is so fundamentally flawed or defective that is it is a nullity – that is, it should be treated as completely non-existent – there is nothing before the Court capable of rectification by s 204;

(c) the question of whether something is a nullity is a matter of degree which is not to be approached in a mechanical or technical manner; and a Court should be slow to reach such that drastic conclusion, even where there are substantial deficiencies;

(d) if the defect cannot be stigmatized as a nullity, but is instead a procedural irregularity, the question is whether it is capable of rectification without causing a miscarriage of justice.^[34]

[72] In Hall the application of s 204 was approached by considering the relevant statutory provisions. By comparing the particular features of the SPA with the Transport Act 1962, the Court was satisfied that s 204 applied to rectify the deficiencies in the infringement notice, which had failed to correctly indicate the time period for payment of the infringement fee.
[73] In Abraham v District Court at Auckland,^[35] where the defendant was not given his statutory right to elect trial by jury, this Court summarised the effect of the leading authorities as:

[48] ... indicat[ing] that whether a particular procedural failure constitutes a nullity in the context of s 204 is a matter of degree requiring an overall assessment of the particular failure against the relevant statutory background. It is critical to understand the place of the particular requirement in the scheme of the legislation. Further, as Cooke J noted in Police v Thomas, the concept of nullity will frequently overlap with the concept of miscarriage of justice in s 204.

[49] The application of the nullity concept will be straightforward in some situations. For example, if a judicial officer deals with a matter that he or she has no jurisdiction to deal with, it seems obvious that the resulting decision should be characterised as a “nullity” which cannot be rectified by resort to s 204. The effect of s 204 cannot be to confer jurisdiction where it does not exist. (A similar issue arises in relation to the application of the proviso to s 385(1) of the Crimes Act to trials that are nullities in terms of s 385(1)(d) – see R v Blows CA103/95, 31 August 1995 at 5 – 7 and R v O (No 2) [1999] 1 NZLR 326 at 329 (CA).) Similarly, where some process, the effect of which is to confer jurisdiction, has not been followed (for example, a statutorily required consent to prosecute has not been obtained), it is easy enough to characterise what follows as a nullity.

[50] As will be apparent, Mr Davey for the appellant argued that the present case fell within the class of case where non-compliance is fatal, so that the resulting convictions are nullities. To assess this argument we begin with the obligation at issue.

(Emphasis added.)

[74] We add that, in Hall, Cooke P was discussing nullity in the procedural context. Jurisdiction was not in issue. In Kestle, McCarthy P observed obiter that a committal for trial without jurisdiction was a nullity.^[36] In Thomas,^[37] Cooke J observed that questions of miscarriage of justice and nullity will often tend to merge. We agree that the concepts may overlap. Our approach will be to determine whether the omission to obtain leave was, as Mr Miles submits, an essential prerequisite to jurisdiction – or in the words of Abraham – a process necessary to confer jurisdiction.^[38] If not, the question will be whether the particular omission constitutes the whole proceeding as a nullity or whether there remains something before the Court which is able to be cured or saved by s 204.
[75] In this respect, Mr Miles emphasised the parenthetical statement in the final sentence in Abraham at [49]. However, that passage was referring to the principle discussed by Somers J in O’Connell based on the English cases, where the consent of a public law officer or Minister of the Crown was required before the substantive decision could be made to prosecute. The comments of this Court in Burgess v Field^[39] are in the same category. In that case s 103 of the Crimes Act 1961 both created the offence of corruption and bribery by a Member of Parliament and expressly prohibited a prosecution for an offence against the section without the leave of a Judge of the High Court.^[40] The Court was satisfied that the decision to grant leave to prosecute was an integral step in the criminal process.
[76] Before leaving the cases, we refer to an earlier New Zealand decision which was not cited in argument. R v Kestle^[41] was apparently the first occasion on which this Court considered s 204; its relevance lies in its robust and pragmatic approach to the section’s application. Mr Kestle challenged his conviction for murder based on the validity of the committal process under s 168 of the SPA. At the preliminary hearing in the District Court, the Magistrate committed the accused for trial (in the then Supreme Court) without offering him the opportunity to plead guilty as required by s 168(1)(a) or asking him to plead. However, a fortnight later, after apparently appreciating his omission, the Magistrate arranged for Mr Kestle to be bought back to Court. Mr Kestle entered a plea of not guilty while reserving his rights.
[77] McCarthy P observed in Kestle that full effect should be given to the ordinary and natural meaning of the language of s 204, because the proviso itself affords the accused person the necessary degree of protection.^[42] The President then said this:^[43]

In our view, s 204 in its plain meaning prevents this Court from holding the order of committal to be invalid by reason of that omission unless the Court is satisfied that there has been a miscarriage of justice. In the circumstances of the present case we feel able to say with certainty that the failure so to address the appellant did not operate his disadvantage, as it is clear from the facts that he had no wish or intention to plead guilty to the charge of murder ...

[78] Further, in addressing an argument from the Crown, McCarthy P added that:^[44]

... nothing occurred in the present case which in any way disqualified the Magistrate from again taking up the proceedings at the point where they went wrong. He had already expressed his opinion on the merits of the case and the steps remaining to be taken merely involved his following the directions given by s 168. ...

[79] We add that Mr Chisnall relies upon recent English authority^[45] to support what has been described as a “sea change” in that jurisdiction. The previous approach of enquiring whether procedural requirements were mandatory or directory has been rejected in favour of an enquiry into Parliament’s intention as to the consequences of non-compliance.^[46] It is unnecessary for us to examine those authorities, which deal mainly with leave provisions, except to note two material factors.
[80] In R v Ashton the English Court of Appeal drew a distinction between jurisdictional and procedural errors as follows:^[47]

4. ... Indeed, these three applications demonstrate how far-reaching the effect of those authorities is likely to be whenever there is a breakdown in the procedures whereby a defendant’s case progresses through the courts (as opposed to the markedly different situation when a court acts without jurisdiction). In our judgment it is now wholly clear that whenever a court is confronted by failure to take a required step, properly or at all, before a power is exercised (‘a procedural failure’), the court should first ask itself whether the intention of the legislature was that any act done following that procedural failure should be invalid. If the answer to that question is no, then the court should go on to consider the interests of justice generally, and most particularly whether there is a real possibility that either the prosecution or the defence may suffer prejudice on account of the procedural failure. If there is such a risk, the court must decide whether it is just to allow the proceedings to continue.

5. On the other hand, if a court acts without jurisdiction – if, for instance, a magistrates’ court purports to try a defendant on a charge of homicide – then the proceedings will usually be invalid.

[81] In R v Clarke, Lord Bingham reinforced the primacy of this test of enquiring into Parliament’s intention about the consequences of non-compliance with a statutory requirement,^[48] bearing in mind, as noted, that in England there is no apparent equivalent savings provision to s 204; that approach, reinforced in Abraham, is the approach we intend to adopt here.

Conclusion

(i) Jurisdiction

[82] The first step in this inquiry is to determine whether, if it was required, a formal grant of leave under s 21(1)(a) of the SPA was necessary to confer jurisdiction on the Environment Court to hear and determine these charges. In our judgment these factors are material:

(a) By s 338(1) of the RMA, a person who contravenes s 15 – by allowing the discharge of contaminants – commits an offence against that statute. As our analysis shows, a person who commits that offence also commits an infringement offence. He or she may be prosecuted under the SPA or by service of an infringement notice. In this case, the WRC followed the former route by laying informations under the SPA.

(b) The informations were served on Wallace and its employees. All entered pleas of not guilty. The charges were heard at a defended hearing by an Environment Judge whose jurisdiction derived from s 309 of the RMA. Evidence was called and challenged. The Judge was satisfied that the charges were proven. The appellants were found liable. Convictions were entered and fines were imposed.

(c) The offence provisions of the RMA, principally ss 15, 309, 338, 339 and 343A, 343B and 343C, exclusively created the jurisdictional power to determine these informations. Collectively, these provisions defined the offences, identified the appropriate forum and judicial officer, authorised findings of guilt and prescribed penalties. They were a self-contained source of jurisdiction; nothing more was required. Proof of leave to lay the informations was not a prerequisite of criminal liability. Nor could it be considered an element of the offence.

[83] Section 21(1)(a) of the SPA is a generic provision, applying to substantive offences deriving from a wide range of legislation. It is a statute regulating criminal procedure, not one creating criminal liability. Some provisions of the SPA may be part of the process necessary to create jurisdiction, for example, because they create rights. Wallace and the other appellants were not deprived of a right which it might have exercised.
[84] Section 21(1)(a) is also silent as to when leave is to be granted. By contrast, the wording of the statutory provisions at issue in the English cases, as well as O’Connell and Field, explicitly required consent before proceedings could be commenced. The relevant sections were phrased in prohibitory terms. As a matter of degree, Parliament made plain its intention in those cases that leave was an essential prerequisite and integral to the process of issuing proceedings; the leave requirements were stipulated in the provisions constituting the offences in question.^[49] In effect, the offence was incomplete in those cases and did not come into existence until consent was given. So, without it, the Court had no jurisdiction.
[85] In this respect, Counsel assumed that leave under s 21(1)(a) of the SPA is required contemporaneously with or before filing the information. We accept that its wording implies that timing. But Mr Miles did not suggest why that time is essential, as opposed to any other time along the procedural path to determination, providing leave is given or deemed to have been given at some stage. And, unlike the other statutory provisions we have discussed, Parliament did not consider the issue of such importance to stipulate emphatically that leave was a prerequisite to filing the information. There is no reason why leave could not be deemed from or implicit in the Court’s substantive decision.
[86] In our judgment, the WRC’s omission to obtain leave from a District Court Judge or Registrar, if it was required, was not a failure to satisfy a jurisdictional requirement which requires the proceedings to be treated as invalid.

(ii) Procedural irregularity

[87] The consequential inquiry then is whether the WRC’s irregularity in failing to obtain leave was so fundamental or drastic that it should nonetheless condemn as a nullity the entire process from filing the informations to the determination of liability. Or alternatively, can s 204 (see at [64] above) apply to rectify the irregularity? Our analysis to date has largely answered this question. In our judgment, the failure did not strike at the heart of the case and there is no warrant for treating the process as if it had never occurred.
[88] We are satisfied that the reason why the appellants do not assert a miscarriage of justice is the very reason why the proceedings should not be treated as a nullity. The Minister who introduced the infringement offence provisions to the SPA briefly articulated the purpose of s 21(1)(a).^[50] It was to safeguard against the risk of an authority abusing its prosecutorial discretion under the infringement offence regime, by issuing criminal proceedings for relatively minor offending instead of adopting the infringement notice procedure.
[89] At an abstract level, the intention of the leave provision is to provide a degree of independent oversight of prosecutorial motives. It is a screening or filtering process. However, the fact that leave may be granted by a Registrar, who is not required to be legally qualified, points to a low threshold. It suggests that, unlike a situation such as Field, the strength of the prosecution case is not a relevant or major consideration.
[90] We agree with Mr Chisnall that the leave provision hardly seems relevant to allegations of serious regulatory offending. Essentially, it appears designed to force a prosecuting authority to the default position of issuing an infringement notice wherever there may be doubt about the proper or appropriate process; that is, where it would be more appropriate to issue an infringement notice, with its limitations on penalty and streamlined processes.
[91] Significantly, Wallace has never challenged the prosecutions on that ground. For example, it never sought to stay or quash the charges before hearing. As noted, Mr Casey did not suggest that the WRC abused its prosecutorial discretion or that the infringement notice procedure would have been more appropriate. A maximum fee of $1,000 payable on an infringement notice would plainly have been an inadequate response to offending of this nature, if proven.
[92] Ironically, if an infringement notice had been issued by the WRC and Wallace had sought a hearing, proceedings would then have been dealt with as if an information had been laid and dealt with summarily.^[51] In this situation leave would not have been necessary.^[52] Once proceedings in respect of an infringement notice were filed, they would follow the same route to trial and disposition as an information laid for infringement offences.
[93] Our approach is consistent with that adopted in Kestle and O’Connell. In terms of Kestle, s 204 prevents us from concluding that the proceeding was a nullity unless we are satisfied that there was a miscarriage of justice. As in both those cases, an omission occurred. But it did not operate to Wallace’s disadvantage. Inevitably, as noted, leave would have been given if sought by the WRC at any time before or after the informations were filed. The omission can now be rectified by treating the leave as inherent in the District Court’s decision on liability.
[94] In our judgment, this is the type of situation envisaged by s 204. Viewed as a question of statutory construction, we are satisfied that Parliament would not have intended that the WRC’s omission should result in the proceedings being treated as a nullity. Unlike the overseas cases which have concerned irregularities with indictments,^[53] there is nothing in the legislative history to suggest that Parliament considered s 21 to be of fundamental importance to determination of criminal liability. The spirit and intent of the leave requirement are satisfied by, and implicit in, the findings of criminal liability and the sentences which were considered appropriate for the offending, going far beyond $1000 fines.
[95] Those events effectively remedied the WRC’s error and provided the limited protection intended by s 21(1)(a) against being unjustly rendered subject to the SPA procedural track, as opposed to the infringement notice regime. It is implicit in the District Court’s decision that the Judge considered the correct procedural track had been chosen. And it was also open to the appellants to explicitly contend that they should have been subject to the infringement notice regime only, rather than to raise the technical point relating to the WRC’s omission upon completion of the proceedings.
[96] Once we have concluded that the WRC’s omission did not justify treating the whole proceeding as a nullity, s 204 must operate. Wallace’s acceptance that there was no miscarriage of justice as a result of the irregularity is decisive. The concessions made by Messrs Casey and Miles were proper. In our judgment, in answer to the second question, the proceedings were not a nullity and are saved by s 204.

Question (3): are the convictions unlawful?

[97] The third question is whether in any event the convictions were entered unlawfully by virtue of s 78 of the SPA, which materially provides:

Notwithstanding any other provision of this or any other Act, where in proceedings for an infringement offence (whether being an offence for which an infringement notice has been issued or not) the defendant is found guilty of, or pleads guilty to, 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.

[98] Wild J dealt briefly with this issue for the reason that:

[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.

[99] Mr Casey submits that Wild J erred. He says that s 78A of the SPA provides that a conviction may not be entered against a defendant who is found or pleads guilty to an infringement offence, whether the defendant is first proceeded against summarily or by way of an infringement notice. While the Court may impose such fines, costs and other penalties as it is authorised to do on a conviction, Mr Casey says that s 78A’s plain words prohibit a conviction.
[100] All counsel appear to agree with Wild J that the answer to the first question determines the answer to this question. If we had found that Wallace’s offending fell within the s 2(1) SPA definition of an infringement offence, then the plain words of s 78A would have ousted the Court’s jurisdiction to enter a conviction. However, we have found to the contrary and the convictions were not entered unlawfully.

Result

[101] The first, second and third questions are answered in favour of the WRC and the Crown. Leave was not required to lay the informations but, if it was, the proceedings were valid despite the prosecuting authority’s failure. The convictions were not entered unlawfully.
[102] As earlier noted, the High Court has now quashed the convictions entered against Wallace and Messrs Cross and Dew on other grounds. Accordingly no formal orders are necessary for them. The convictions entered against Ms Down and the interveners are unaffected.
[103] Counsel did not address us on costs. An award would normally follow the event. However, the position is complicated by the presence of what were effectively three appellants (including the interveners) and two respondents in separate appeals. Separate awards are likely to be necessary. Counsel should also consider whether and to what extent the Costs in Criminal Cases Act 1967 might apply.
[104] We expect the parties will be able to settle costs. However, if not, they are to file memoranda (of no more than five pages in length). The successful respondents are to file memoranda by 29 April 2011 and the appellants are to respond by 13 May 2011.

Solicitors:
Holmes Dangen & Assoc, Auckland for Appellant in CA819/2009
Nielsen Law, Hamilton for Appellants in CA94/2010, CA95/2010, CA96/2010
Crown Law Office, Wellington for Respondent in CA819/2009

^[1] Wallace Corporation Ltd v Waikato Regional Council [2009] NZHC 2621; [2010] 2 NZLR 556 (HC).
^[2] Summary Proceedings Act 1957, s 204.

^[3] Wallace Corporation Ltd v Waikato Regional Council HC Hamilton CRI-2008-404-404, 7 October 2010.
^[4] R v Conway DC Auckland CRI-2008-004-19495, 18 December 2009.

^[5] Waikato Regional Council v Wallace Corporation Ltd DC Auckland CRN05039500268, 11 September 2007.
^[6] At [25].
^[7] (7 July 1987) 482 NZPD 10259.

^[8] The leave requirement is restricted to s 21(1)(a), being absent in s 21(1)(b). See also the discussion below at [27] and [92].

^[9] Section 21(3).

^[10] Section 21(8).
^[11] Resource Management Act 1991, s 5.
^[12] Resource Management Amendment Act 1996, s 18.
^[13] (14 December 1995) 552 NZPD 10715.

^[14] See Summary Proceedings Amendment Act 2006, s 36; and discussion below at [38] and following.

^[15] Resource Management (Infringement Offences) Regulations 1999, sch 1; Resource Management Act 1991, s 360(1)(bb).
^[16] Summary Proceedings Act 1957, ss 21(2)–21(5AB).
^[17] Summary Proceedings Act 1957, ss 21(6)–21(9).
^[18] At [25] and [27].

^[19] At [31].

^[20] Nelson City Council v Howard [2004] NZAR 689 (HC) at [9].

^[21] Summary Proceedings Amendment Act 2006, s 36.

^[22] Summary Proceedings Amendment Act 2006, ss 31–35.

^[23] See Abraham v District Court at Auckland [2007] NZCA 598, [2008] 2 NZLR 352 at [49].
^[24] R v Ashton [2006] EWCA Crim 794, [2007] 1 WLR 181 (CA), noted in Abraham at [56].
^[25] R v O’Connell [1981] 2 NZLR 192 (CA) at 194–195..
^[26] R v Bates [1911] 1 KB 964 (CA).

^[27] R v Angel [1968] 1 WLR 669 (CA).

^[28] Price v Humphries [1958] 2 QB 353.

^[29] See also the Crimes Act 1961, s 103, where leave of a Judge of the High Court is required to issue bribery proceedings against a Member of Parliament; Burgess v Field [2007] NZCA 547, [2007] NZSC 110, [2008] 1 NZLR 733.
^[30] R v Ostler and Christie [1941] NZLR 318 (CA).

^[31] R v O’Connell [1981] 2 NZLR 192 (CA) at 196.

^[32] Hall v Ministry of Transport [1991] 2 NZLR 53 (CA) at 57.

^[33] Including R v Kestle [1973] 2 NZLR 606 (CA); Hemapala v R [1963] AC 859 (PC) at 867; Police v Thomas [1997] 1 NZLR 109 (CA); Best v Watson [1979] 2 NZLR 492 (CA) at 494.

^[34] The nullity test appears to be adopted from s 385(1)(d) of the Crimes Act 1961.

^[35] Abraham v District Court at Auckland [2007] NZCA 598, [2008] 2 NZLR 352.

^[36] R v Kestle [1973] 2 NZLR at 610.

^[37] Police v Thomas [1976] NZCA 41; [1977] 1 NZLR 109 (CA) at 121.
^[38] Compare R v Ashton [2006] EWCA Crim 794, [2007] 1 WLR 181 at [4]–[5].

^[39] Burgess v Field [2007] NZCA 547, [2008] 1 NZLR 733.

^[40] Section 103 of the Crimes Act provides:

(1) Every member of Parliament is liable to imprisonment for a term not exceeding 7 years who corruptly accepts or obtains, or agrees or offers to accept or attempts to obtain, any bribe for himself or any other person in respect of any act done or omitted, or to be done or

omitted, by him in his capacity as a member of Parliament.

(2) Every one is liable to imprisonment for a term not exceeding 7 years who corruptly gives or offers or agrees to give any bribe to any person with intent to influence any member of Parliament in respect of any act or omission by him in his capacity as a member of

Parliament.

(3) No one shall be prosecuted for an offence against this section without the leave of a Judge of the High Court. Notice of the intention to apply for such leave shall be given to the person whom it is intended to prosecute, and he shall have an opportunity of being heard against the application.

^[41] R v Kestle [1973] 2 NZLR 606 (CA).

^[42] At 609.

^[43] Ibid.

^[44] At 610.

^[45] R v Ashton [2006] EWCA Crim 794, [2007] 1 WLR 181; R v Soneji [2005] UKHL 49, [2006] 1 AC 340. See also R v Janceski [2005] NSWCCA 281, (2005) 64 NSWLR 10.

^[46] R v Clarke [2008] UKHL 8, [2008] 1 WLR 338 at [9], [14] and [20] per Lord Bingham.

^[47] R v Ashton at [4]–[5], applied in R v Abraham at [56] and approved in R v Clarke at [14].

^[48] R v Clarke at [18] and [19].

^[49] Compare McPhail v Durbridge Developments Ltd (in liq) (1998) 8 NZCLC 261,610 (HC).
^[50] See above at [15].
^[51] See Summary Proceedings Act 1957, s 21(8)(d).

^[52] Although the purpose of the provision – effectively making the infringement notice regime the default procedural track to prevent the abuse of prosecutorial discretion – would have been satisfied; See also discussion above at [16].

^[53] See, for example, R v Clarke; R v Ashton and R v Janceski.

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