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Court of Appeal of New Zealand |
Last Updated: 30 June 2017
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Applicant |
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Respondent |
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BETWEEN
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BETWEEN
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BETWEEN
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Respondent |
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Court: |
Cooper, Woodhouse and Collins JJ |
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Counsel: |
A O’Connor for Applicants S F Quinn and K E Krumdieck for Respondent |
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(On the papers) |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Cooper J)
[1] These four applications for leave to appeal have been dealt with together because they all raise the same issue. The question presented is whether infringement notices issued by Wellington City Council parking wardens were in the correct form. Both the District Court and the High Court considered that the correct form had been used.[1] The applicants, all recipients of the infringement notices, now seek leave to bring a second appeal pursuant to s 237 of the Criminal Procedure Act 2011.
[2] Each of the applicants was charged with the offence of operating a motor vehicle in contravention of s 242(1) of the Land Transport Act 1998 (the Act). It was alleged they had committed that offence by operating a motor vehicle when the vehicle was not licensed. They were convicted and in each case ordered to pay a fine of $200.
Extensions of time
[3] The applicants seek extensions of time for filing the notices of application for leave to appeal. Those applications are opposed by the respondent on the basis that the grounds on which the extensions of time are sought are insufficient. There is, however, no suggestion of prejudice and we consider the nature of the case makes it appropriate for us to extend the time for seeking leave to appeal so that the merits of the leave applications can be assessed.
The relevant provisions
[4] Section 242 of the Act provides as follows:
242 Motor vehicles must be registered and licensed
(1) A motor vehicle must not be operated on a road unless the motor vehicle—
(a) is registered and licensed in accordance with this Part; and
(b) has affixed to it and displayed in the manner prescribed by regulations made under this Part—
(i) the registration plates issued for it; and
(ii) a current licence issued for it and appropriate for its use under section 244.
(2) The person registered in respect of a motor vehicle in accordance with this Part must—
(a) keep the motor vehicle licensed at all times in accordance with this Part; and
(b) ensure that the prescribed fees and accident insurance levies are paid for the time that the motor vehicle is required to be licensed (whether or not it is actually licensed).
(3) Subsections (1) and (2) do not override any provisions of this Part or of regulations made under this Part that provide expressly for a motor vehicle to be operated on a road otherwise than in accordance with subsections (1) and (2).
(4) A motor vehicle that is a registered motor vehicle under the Transport (Vehicle and Driver Registration and Licensing) Act 1986 or any corresponding former Act immediately before the commencement of this Part is to be treated as if it were registered under this Part.
[5] Regulation 77 of the Land Transport (Motor Vehicle Registration and Licensing) Regulations 2011 (the 2011 Regulations) creates offences of operating a motor vehicle in contravention of s 242(1) of the Act. It deals separately with driving and using a vehicle on a road[2] and causing or permitting a vehicle to be on a road.[3] The regulation relevantly provides as follows:
77 Operation of unregistered or unlicensed motor vehicle
(1) A person commits an offence if the person operates a motor vehicle in contravention of section 242(1) of the Act by driving or using it on a road if the motor vehicle—
(a) is not registered and licensed in accordance with Part 17 of the Act; or
(b) does not have affixed to it and displayed in the manner prescribed by these regulations—
(i) the registration plates issued for it; and
(ii) a current licence issued for it and appropriate for its use.
(2) A person commits a stationary vehicle offence if the person operates a motor vehicle in contravention of section 242(1) of the Act by causing or permitting it to be on a road or driven on a road if the motor vehicle—
(a) is not registered and licensed in accordance with Part 17 of the Act; or
(b) does not have affixed to it and displayed in the manner prescribed by these regulations—
(i) the registration plates issued for it; and
(ii) a current licence issued for it and appropriate for its use.
[6] It is relevant also to note the definition of “stationary vehicle offence” in s 2 of the Act:
stationary vehicle offence means—
(a) parking in any portion of a road in breach of—
(i) any Act or regulation; or
(ii) any bylaw made under section 22AB(1)(m) to (o):
(b) any offence specified as a stationary vehicle offence in regulations made under this Act.
Here, the infringement notices alleged a stationary vehicle offence in accordance with para (b) of the definition and reg 77(2)(a).
[7] The notices were in the form specified in sch 4 of the Land Transport (Infringement and Reminder Notices) Regulations 2012 (the 2012 Regulations). Regulation 7 of the 2012 Regulations provides that an infringement notice for a stationary vehicle offence must be in the form set out in sch 4. Consistently with that, reg 3 of the 2012 Regulations provides:
3 Infringement offences
An infringement notice in respect of an infringement offence, other than a moving vehicle offence, a special vehicle lane offence, an overloading offence, a toll offence, or a stationary vehicle offence, must be in the form set out in Schedule 1.
[8] However, the applicants contend that the notices should have been in the form specified in sch 1. The argument is founded on reg 95 of the 2011 Regulations, which provides:
95 Form of infringement notice
For the purposes of section 139 of the Act,[[4]] an infringement notice for an infringement offence against a provision of these regulations and a reminder notice in respect of an infringement notice must be in the form prescribed in Schedule 1 of the Land Transport (Infringement and Reminder Notices) Regulations 1998.
(Footnote added.)
[9] The 2012 Regulations revoked the Land Transport (Infringement and Reminder Notices) Regulations 1998 (the 1998 Regulations). However, there was no consequential amendment to reg 95 of the 2011 Regulations, which continues to refer to sch 1 of the 1998 Regulations. It is clear that reference must be read as referring to sch 1 of the 2012 Regulations, there being no relevant material difference between the forms specified in the 1998 Regulations and 2012 Regulations. On this basis, the applicants assert that the infringement notices were incorrectly issued in the form prescribed by sch 4 of the 2012 Regulations: as the infringement notices were for an infringement offence under the 2011 Regulations, sch 1 should have been used.
[10] In summary, the question is whether the infringement notices should have been in the form specified in sch 1 or sch 4 of the 2012 Regulations. Answering the question requires an attempt to reconcile reg 95 of the 2011 Regulations with regs 3 and 7 of the 2012 Regulations.
High Court judgment
[11] Ellis J held that the District Court Judge was correct to hold that in the case of stationary vehicle offences reg 7 of the 2012 Regulations, as a specific provision, should prevail over the more general reg 95 of the 2011 Regulations. She considered there was a clear and irreconcilable difference between the two provisions because both used the word “must”. The inconsistency between the provisions could only be resolved by reference to orthodox principles of statutory interpretation.[5]
[12] She also expressed the view that the form in sch 1 was much less apt for stationary vehicle offences than the sch 4 form.[6] For these reasons, she agreed with the approach taken by the District Court and dismissed the appeal.
The applications for leave
[13] The applications for leave to bring a second appeal fall to be considered under s 237 of the Criminal Procedure Act, which provides:
237 Right of appeal against determination of first appeal court
(1) A convicted person may, with the leave of the second appeal court, appeal to that court against the determination of the person’s first appeal under this subpart.
(2) The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—
(a) the appeal involves a matter of general or public importance; or
(b) a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
[14] The applicants contend that the proposed appeals involve a matter of general or public importance because they relate to the form of, potentially, thousands of infringement notices that will have been issued throughout New Zealand. They point to the significance of the outcome for other cases.
[15] The applicants further contend that miscarriages of justice have occurred because the High Court erred in its approach. They essentially repeat the arguments that failed to persuade the two lower courts and argue that since the 2012 Regulations did not repeal the 2011 Regulations, the latter remain in force and deal with the specific case of operating an unlicensed motor vehicle. In the circumstances, the High Court was wrong to conclude that the 2012 Regulations were more specific, and the 2011 Regulations general. Counsel submits that the 2011 Regulations still apply, the infringement notices issued to the applicants were not in the correct form and thus they were incapable of effective service under s 139 of the Act.
[16] Counsel for the respondent submit that the reasoning of the High Court is correct. They argue that the appeals do not involve a matter of general or public importance on the basis that the convictions of the applicants are specific to them, and they dispute that the High Court judgment could affect the infringement notices issued to others since 2011. No miscarriages of justice have occurred because the decision of the High Court was clearly correct.
Discussion
[17] Section 237 of the Criminal Procedure Act is in the same terms as the leave provisions in other subparts of that Act providing for second appeals. As this Court observed in McAllister v R, the leave provisions are similar to those that were in s 13 of the Supreme Court Act 2003 and are now found in s 74 of the Senior Courts Act 2016.[7] That being the case this Court will generally apply an approach consistent with that taken by the Supreme Court in response to the equivalent statutory language.[8]
[18] We accept, as the applicants claim, that a significant number of other persons might have received infringement notices in the sch 4 form for the offence of operating a motor vehicle when the vehicle was not licensed. However, that is not sufficient to establish that the proposed appeal involves a matter of general or public importance.
[19] Although s 237(2) contains two distinct matters on which the Court may be satisfied in order to give leave for a second appeal, in some circumstances the decision about whether there is a matter of general or public importance will be influenced, at least to some extent, by the Court’s perception of the strength of the issues that might be raised on the proposed second appeal. Where an issue has already been twice argued, and it is sought essentially to repeat the exercise a further time, any public importance the issue might otherwise have is inevitably diminished if the argument appears weak. In those situations a second appeal is unlikely to be justified as involving a matter of general or public importance.[9]
[20] We consider that is the position in this case. Reduced to its essentials the question is whether the sch 4 notice in the form clearly designed for stationary vehicle offences should be used, or whether the sch 1 notice designed generally for use in the case of infringement offences should be employed. Both the applicants and the respondent rely on the interpretative principle that specific provisions should be applied in preference to the words of general provisions; they disagree as to the implications of application of the principle. The applicants say that the 2011 Regulations are more specific because they create the offence and reg 95 requires all notices issued under those regulations to be in the form found in sch 1 of the 2012 Regulations. However, the 2012 Regulations specifically require that stationary vehicle offences be the subject of sch 4 notices.
[21] Like the High Court, we consider the latter is more aptly described as the more specific provision. It is not significant that the offence being prosecuted is created by the 2011 Regulations. More important is the fact that the 2012 Regulations specify that the offence should be the subject of a notice in the form set out in sch 4.
[22] There can be no suggestion here that there have been miscarriages of justice. The facts establishing the commission of an offence are not in dispute in any of these cases. All that has been in dispute in the Courts below is whether the correct form was used.
[23] The foregoing discussion means the applicants cannot establish either of the grounds on which a leave for a second appeal may be granted.
Result
[24] As a consequence, in each case we extend the time for applying for leave to appeal but decline the application.
Solicitors:
Simpson &
Co, Mana for Applicants
DLA Piper New Zealand, Wellington for Respondent
[1] Wellington City Council v Jones [2016] NZDC 3876; Jones v Wellington City Council [2016] NZHC 2310.
[2] Land Transport (Motor Vehicle Registration and Licensing) Regulations 2011, reg 77(1).
[3] Regulation 77(2).
[4] Section 139 of the Land Transport Act 1998 provides for infringement notices to be issued by enforcement officers who have reasonable cause to believe an infringement offence is being or has been committed by a person. Its provisions are not directly relevant to the issues raised by these applications.
[5] Jones v Wellington City Council, above n 1, at [22].
[6] At [23].
[7] McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [32].
[8] At [34]; and Hohipa v R [2015] NZCA 73 at [37].
[9] Compare Cribb v Evia Rural Finance Ltd [2015] NZSC 5 at [9].
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URL: http://www.nzlii.org/nz/cases/NZCA/2017/261.html