Friar v Wellington City Council [2013] NZCA 19 (21 February 2013)

Last Updated: 27 February 2013

IN THE COURT OF APPEAL OF NEW ZEALAND

CA559/2012 [2013] NZCA 19

BETWEEN MURRAY JOHN FRIAR Applicant

AND WELLINGTON CITY COUNCIL Respondent

Court: Ellen France, Harrison and Stevens JJ

Counsel: Applicant in person K M Anderson and A M White for Respondent

Judgment: 21 February 2013 at 10.00 am

(On the papers)

JUDGMENT OF THE COURT

The application for special leave to appeal is declined.
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REASONS OF THE COURT
(Given by Stevens J)

Introduction

[1] Mr Friar applies under s 144(3) of the Summary Proceedings Act 1957 for special leave to appeal against a decision of MacKenzie J on appeal from the District Court.[1]

Background

[2] On 22 December 2011, the applicant was issued with an infringement notice for parking within six metres of an intersection.[2] The applicant elected to defend the infringement notice and the matter proceeded to a defended hearing before two Justices of the Peace on 11 May 2012.
[3] Before the Justices of the Peace, the applicant conceded that his vehicle was parked 2.42 metres from the intersection of Upland Road and Plunket Street in Kelburn, Wellington. However, he argued that he was not liable under r 6.3(2) of the Land Transport (Road User) Rule 2004. That rule provides:

A driver must not stop, stand, or park a vehicle on any part of a road, whether attended or unattended, within an intersection or within 6 m of an intersection unless the stopping, standing, or parking is authorised by signs or markings maintained by the road controlling authority.

The section of road on which the applicant’s vehicle was parked was marked with an unbroken white line. The applicant argued that this constituted a marking authorising drivers to park in that area.

[4] This argument was rejected by the Justices of the Peace, who held that the offence had been proven beyond reasonable doubt and imposed a fine of $60. The applicant was also ordered to pay Court costs of $132.89.
[5] The applicant then appealed to the High Court. MacKenzie J dismissed the appeal. His reasons were set out as follows:

[7] The sole issue in this appeal is whether parking in the location where the appellant’s vehicle was parked is authorised by signs or markings maintained by the respondent. The line relied upon by the appellant does not have that effect. The exact status of the line is not entirely clear from the evidence. I consider that it is clear that it does not authorise parking. The presence of that line is not an indication that the prohibition in r 6.3(2) does not apply. ... There is no other signage which indicates parking is permitted ...

[6] MacKenzie J declined to grant leave to appeal to this Court.[3]

Criteria for granting special leave to appeal

[7] The Summary Proceedings Act allows a second appeal to the Court of Appeal in limited circumstances only. The relevant leave provision is s 144(3), which provides:

Where the High Court refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the High Court or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that Court, for special leave to appeal to that Court, and the Court of Appeal may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[8] As that subsection makes clear, this Court will only grant special leave to appeal if:

• (a) the proposed appeal raises a question of law; and
• (b) the question of law is one that, by reason of its general or public importance or for any other reason, ought to be submitted to the Court for decision.

The application for special leave to appeal

[9] The proposed question for the Court of Appeal set out in the notice of appeal is:

Does the exception to r 6.3(2) of the Land Transport (Road Users) Rule 2004, namely “... unless the stopping, standing or parking is authorised by signs or markings maintained by the road controlling authority”, apply in this case?

[10] The applicant gives three reasons why the markings on the road should be interpreted as authorising parking. First, the road markings are consistent with those defined in the Manual of Traffic Signs and Markings (MOTSAM) to indicate parking. Second, the general public interpret the road markings as authorising parking. Third, a previous appeal in relation to the same road markings had been found in his favour.
[11] The applicant submits that the interpretation of road markings and signs is of the highest interest to all users of public roads. He states that this is particularly so in Wellington, where the parking authorities appear to be taking advantage of the “guideline” status of MOTSAM to increase revenue. He further submits that it is in the public interest that “a member of the public when obeying a law as interpreted by the wider public should not be convicted and fined for disobeying that law”.
[12] The respondent opposes the application for special leave to appeal, submitting that no question of law arises. The respondent cites Bryson v Three Foot Six Ltd,[4] where the Supreme Court held that an appeal cannot be said to be on a question of law where the fact-finding Court has merely applied law which it has correctly understood to the facts of the case. The respondent submits that the Court correctly applied the law in this case. The exemption in r 6.3(2) only applies if the markings on the road authorise parking in that location. The Court found that on the facts the road markings did not support the application of the exemption. The respondent also submits that the previous appeal relied on by the applicant concerned a different rule.
[13] The respondent further submits that, even if the question raised by the applicant is one of law, it is not of general and public importance. The question raised by the applicant is fact specific to this parking location and cannot be said to affect a large number of New Zealanders.

Discussion

[14] The question of whether the exemption set out in r 6.3(2) of the Land Transport (Road User) Rule 2004 applies in his case is one of fact. It does not seek clarification of a point of law, but rather concerns the application of the law to the particular circumstances of the applicant’s case. For that reason alone the application for special leave must fail.
[15] Furthermore, the proposed question does not raise any issue of sufficient importance to warrant determination by this Court. We are satisfied that the interpretation of road markings on Upland Road is not an issue of general or public importance.

Decision

[16] For the above reasons the application for special leave to appeal is declined.

Solicitors:
DLA Phillips Fox, Wellington for Respondent

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[1] Friar v Wellington City Council [2012] NZHC 1588.

[2] This is an offence under r 6.3(2) of the Land Transport (Road User) Rule 2004 and s 40 of the Land Transport Act 1998.
[3] Friar v Wellington City Council [2012] NZHC 2130.
[4] Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [25].