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PAUL MCBRIDE V WELLINGTON CITY COUNCIL HC WN CRI-2009-485-44 [2009] NZHC 957 (5 August 2009)

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
                                                                           
                                               CRI-2009-485-44



                                                            PAUL
MCBRIDE



                                                                             v



                                   
        WELLINGTON CITY COUNCIL



Hearing:                   28 July 2009

Appearances: Ms Brown and Ms Thistle for Mr McBride

            Mr Quinn for Wellington City Council

Judgment:                  5 August 2009                         at 2.15 pm



                                                JUDGMENT OF MALLON J



                                                        
            Contents
Introduction..........................................................................................................................................
[1]
The facts ..............................................................................................................................................
[4]
Procedural issue ...................................................................................................................................
[6]
   The law ...........................................................................................................................................
[6]
   What occurred here .......................................................................................................................
[10]
   Submissions ..................................................................................................................................
[14]
   My assessment ..............................................................................................................................
[16]
Substantive issues ..............................................................................................................................
[25]
   The issues......................................................................................................................................[25]
   Parking meter ................................................................................................................................
[27]
   "At, or adjacent to" .......................................................................................................................
[31]
   Compliance with Rule 12.5(1)(a)..................................................................................................[38]
   Do the Rules' sign requirements apply in any event? ................................................................... [43]
Costs
..................................................................................................................................................
[45]




PAUL MCBRIDE V WELLINGTON CITY COUNCIL HC WN CRI-2009-485-44 5 August 2009

Introduction


[1]    Parking tickets are frustrating,
and potentially costly, particularly where one
has endeavoured to comply with whatever is required of them to park in the space.
It
is therefore important that parking restrictions are clear so that those parking in the
spaces to which restrictions apply know
what is required of them if they are to park
there. Rules issued under the Land Transport Act 1998 and bylaws issued by local
authorities
are in place to achieve this.


[2]    In this case Mr McBride took the view that it was not clear that a parking
space in Cable
Street in Wellington in which he parked required him to display a
"pay and display" ticket.      He was issued with an infringement
notice for this.
Undeterred, and apparently taking the view that no pay and display ticket was
required for this space despite having
already received one infringement notice, he
continued to park in the same space without displaying a pay and display ticket and
received 14 further infringement notices.


[3]    Mr McBride sought to challenge the infringement notices, but the District
Court upheld them. Mr McBride now appeals to the High
Court. He says that:


       a)      the District Court erred by allowing the Wellington City Council ("the
               Council")
to call further evidence after the evidence had closed and he
               had made his closing submissions; and


       b)  
   the District Court erred in finding that the parking restriction,
               metering and signage complied with the Council's
bylaws and the
               Land Transport Rule: Traffic Control Devices 2004 ("the Rules").


The facts


[4]    The parking space
at issue is on the north side of Cable Street and, at the time
the infringement notices were issued, was the last of 12 car parks
commencing
eastwards from the Cable Street/Chaffers Street intersection. Immediately to the east

of the parking space was a bus
stop. At the relevant time, a sign was attached to a
pole positioned on the footpath alongside the parking space, approximately one
metre within the western boundary line of the parking space (which was measured at
5.4 metres in length). The sign stated as follows:

                                    Pay and Display
                                        Parking
                           
       2 hours maximum
                                    Pay at machine




[5]    A pay and display machine was located 24.2 metres
to the west of the parking
space. The arrow on the sign pointed in this direction. There were four other
complete parking spaces
between that pay and display machine and the parking
space at issue, and the pay and display machine was located on the footpath
alongside the fifth such space.


Procedural issue



The law


[6]    The parties agree that, even if the evidence is not rebuttal
evidence, the Court
has a discretion to allow the prosecution to call further evidence after it has closed its
case. They differ
as to when it is appropriate to exercise the discretion.


[7]    The overriding principle is the interests of justice: Murray v
Ministry of
Transport CA 113/83 1 March 1984 at 17. There is no inflexible rule as to the
circumstances in which, and up to what
stage, a court should exercise its discretion:
Murray at 17.


[8]    Examples of where it may be appropriate to exercise the discretion
include:


       a)       where the prosecution seeks to produce formal evidence to repair an
                omission after the
prosecution's case has closed and before the
                evidence has been given for the defendant: Murray at 17;

       b)
     where the matter has only been put in issue in the defendant's
               evidence and the prosecution has been taken by
surprise, particularly
               on a formal point: Murray at 17;


       c)      where the case had proceeded on the basis
of agreed facts with the
               intention that the Court was only to determine the proper application
               of the
law to those facts and a defendant seeks to take opportunistic
               advantage of the absence of a record of a fact: Wellington
City
               Council v McBride HC WN CRI-2007-485-33 22 August 2007
               ("McBride (No. 2)") at [43] and [44]; and


       d)      where a question arose in cross-examination about the operation of a
               device (for testing the proportion
of alcohol in the breath of the driver
               of a motor vehicle), the significance of which was unclear and which
     
         the Judge wished to clarify, and there was no unfair prejudice to the
               defendant because the defendant was
able to reopen its case and call
               such further evidence as he wished: Minifie v New Zealand Police HC
            
  AK A206/00 26 February 2001.


[9]    Conversely, in Savage v The Police HC CHCH AP207/97 16 October 1997
the High Court Judge
(John Hansen J) considered the District Court Judge was in
error in exercising his decision. However, it appears that the High Court was not
referred to Murray (a Court of Appeal decision)
and in Savage the defendant had not
been given the opportunity to make further submissions.          Justice John Hansen
reached
the same conclusion in Farry v Police HC DUN AP46/00 19 December
2000, (in which Murray was referred to the Judge), in circumstances
where the
prosecution ought to have been aware that the evidence was required and where the
District Court had granted leave four
and a half months after the hearing. His
Honour commented that if the leave had been granted sooner he might have reached
a different
view.

What occurred here


[10]   In this case the parties filed an agreed summary of facts before the hearing in
the District
Court. The agreement as to those facts was expressly "[w]ithout limiting
the duty on the informant to establish all necessary facts,
and without limiting the
right of either party to call evidence as to facts". In that document the parties agreed
that the parking
space at issue "[c]ommences approximately 85 metres east from the
intersection of Chaffers Street". That document also attached the
Council resolution,
issued under the relevant bylaw, which designated the area of the relevant parking
restriction as "commencing
9.5 metres east of its intersection with Chaffers Street
and extending in an easterly direction following the northern kerbline for
72 metres".
In other words, the parking restriction began 9.5 metres from the intersection and
ended 81.5 metres from the intersection.
Consistent with this resolution, another
resolution stated that a bus stop commenced at 81.5 metres east of the Cable
Street/Chaffers
intersection.


[11]   The matter was first heard by the District Court on 11 March 2008. The
Council called evidence from a Mr Carmichael,
to produce photographs of the
parking spaces and showing the location of the pay and display machines.
Mr Carmichael's evidence did
not address the issue of whether the park was within
the restricted area, nor why that was so when the agreed statement of facts
referred to
the distance from the intersection to the parking space being approximately 85
metres, whereas the resolution said that
the restriction applied up to 81.5 metres from
the intersection. He was cross-examined but not on the issue of the location of the
parking space from the intersection nor whether the park was within the restricted
area. After the completion of Mr Carmichael's
evidence the Council closed its case.
Mr McBride did not call evidence. In closing submissions Mr McBride submitted
that, as the
park was approximately 85 metres from the intersection, it was outside
the parking restriction in terms of the resolution. On this
basis he submitted that the
Council had failed to prove the offences.


[12]   Over Mr McBride's objection, the District Court Judge
adjourned the hearing
to give the Council the opportunity to provide further evidence on this point.

Counsel were invited to confer
on the matter with a view to agreeing on any
necessary amendments to the agreed summary.


[13]     The Council measured the distance
from the intersection to the parking space,
determining that it was 75.7 metres at the western end of the parking space and 81
metres
at the eastern end. This measurement was not accepted by Mr McBride.
Therefore, when the hearing resumed, Mr Carmichael was recalled
and he gave
further evidence as to this measurement. He was cross-examined by counsel for Mr
McBride. The cross-examination included
questions about the point at which the
measurement was taken and in particular whether it took into account kerb
extensions.    After
this evidence each party presented further submissions.         In
deciding in favour of the Council on the fifteen infringement
notices, the Judge
accepted Mr Carmichael's further evidence and rejected the submissions for
Mr McBride as to the point under the
bylaws from which the measurement should be
taken.


Submissions


[14]     Mr McBride says that the Court's discretion as to whether to permit the
Council to call further
evidence should have been exercised against the Council. He
says it was for the Council to establish the charges and it had failed
to do so at the
point that closing submissions were made. Mr McBride says that there was no
reason why the Council was unable to
call the evidence in the first place. He
distinguishes McBride (No 2), which the District Court Judge said he relied on in
deciding
to provide the Council with the opportunity to call further evidence, on the
basis that that case proceeded entirely on an agreed
statement of facts, whereas the
agreed summary here expressly did not limit the Council's duty to establish all of the
necessary
facts.


[15]     In oral submissions Mr McBride also said that he was prejudiced by what
occurred. First it is said that there was
prejudice because it was not until the defence
submitted that informations had not been proven that the Court permitted the further
evidence to be called.      As I understand it the prejudice is that this enabled
informations to be proven after a defence which
showed that they had not been

proven had been raised. Secondly it is said that prejudice arose because Mr McBride
says he was not
given the opportunity to call evidence. Mr McBride says that his
evidence would have been directed to establishing that if the measurement
was taken
from the correct place it would have shown that the space was outside the 81.5 metre
restriction.   Mr McBride does not
say that he would have decided against
challenging the infringement notices if Mr Carmichael's later evidence had been
given in the
first place.


My assessment


[16]    I accept that it is relevant that there was no reason why the Council could not
have called
evidence from the outset to establish that the park was within the
restricted area. I also accept that there was a difference in
the present case from that
in McBride (No. 2) because in the present case there was an express statement that
the agreed summary
did not limit the Council's duty to establish all necessary facts.
However the question is whether it was in the interests of justice
for the further
evidence to be called. Relevant to this question is how the issue arose, the nature of
that issue and whether the
further evidence gave rise to unfair prejudice to
Mr McBride.


[17]    It is unclear on the evidence whether Mr McBride was initially
confused
about whether the Council intended the relevant park to be a restricted parking area
and as to the risk of an infringement
notice if he did not display a "pay and display"
ticket and, if so, what gave rise to that confusion. If he was initially confused
it
seems less likely that he could have remained confused when he parked in the same
space another 14 times, each time receiving
an infringement notice. It appears that
from an early stage Mr McBride considered there to be some technical errors in the
Council's
method of restricting the park although it is not clear what Mr McBride
initially considered those errors to be.


[18]    I am told
that after the infringement notices were issued and before the
informations were laid Mr McBride had written to Council "providing
a photograph
of the Cable Street car park and setting out the issue". The letter is not before me
and so it is unclear which particular
issue was pointed out to the Council. The

previous cases (McBride v Wellington City Council  [2006] DCR 452 ("McBride
(No. 1)") and McBride (No. 2)), where Mr McBride has represented someone with
the same surname (whom I am told is his brother)
who has challenged parking
infringement notices on various grounds, were not on the ground that the park was a
distance from the
intersection that was outside the area referred to in the restriction.
On the material before me, there was therefore nothing in
the history to alert the
Council that there was an issue as to whether the park was within the area restricted
by the resolution.
Nor is there anything in the agreed statement of facts to alert the
Council that this was being put in issue.


[19]   So while I
accept that from the outset the Council could have produced
accurate evidence of the distance of the park from the intersection rather
than
agreeing to the park being approximately 85 metres from the intersection, it was not
so obvious an omission in the evidence
as to be inexcusable.              In this case
Mr McBride has apparently seized upon the Council's error in agreeing that the park
was approximately 85 metres from the intersection. It was a technical point which
he had kept up his sleeve, and in respect of which
further evidence was readily
available which might show that the point was without merit. I consider that the
Judge was not wrong
to allow the further evidence to be called providing it did not
unfairly prejudice Mr McBride.


[20]   I consider that the first
matter relied on by Mr McBride does not give rise to
prejudice. Allowing the further evidence merely served to establish the relevant
facts so that the defence that Mr McBride had raised could be considered against
those facts. The Council retained the obligation
to prove the information beyond
reasonable doubt on the basis of the facts.


[21]   The second matter relied on by Mr McBride could
amount to prejudice if it
were established. However, Mr McBride did not ask to call evidence. In the
absence of a request to do so
it is wrong to say that he did not have the opportunity
to call evidence and that prejudice arose because of this. Further, Mr McBride
was
able to and did cross-examine Mr Carmichael. This cross-examination included
cross-examination as to where the measurement was
taken from and whether it took
into account kerb extensions.

[22]   Mr McBride was also permitted to and did make further submissions
after
Mr Carmichael's further evidence had been given. The submission referred to an
alleged uncertainty about the point at which
the measurement was to be taken. In
considering this submission the District Court Judge considered the definitions of
"intersection"
and "roadway" in the bylaw and whether it could be said that the
beginning of the intersection was at the point after the parking
space that abutted the
kerb line. He rejected this interpretation concluding:

       The evidence given by Mr Carmichael as to his
own common sense
       interpretation of that term, which he said relied upon the practical advice of
       city engineers, did
not leave me in any doubt as to his methodology nor as to
       the precise points from which his measurements had been taken. That
       interpretation was entirely consistent with the wording of the relevant
       resolutions which express dimensions commencing
from an intersection and
       following a kerbline for a specified distance.

[23]   Therefore even if Mr McBride had given evidence
on the measurement of the
intersection to the parking space it would have made no difference. The Judge was
satisfied that Mr Carmichael's
methodology was correct and the park was within
81.5 metres from the intersection.


[24]   In these circumstances, I am not persuaded
that there was any prejudice
arising to Mr McBride in the lower court's exercise of its discretion to hear further
evidence from
Mr Carmichael. I consider it was in the interests of justice that the
Council was given the opportunity to clarify the distance between
the intersection
and the end of the park. I therefore find against Mr McBride on this ground.


Substantive issues



The issues


[25]   Where a road controlling
authority has imposed a restriction on parking by
designating an area of road to be time restricted, it must indicate that area by
providing signs in accordance with, amongst other things, r 12.5 of the Rules. For
present purposes the relevant requirement is r
12.5(1)(a) which states that these
parking signs must be provided "at each end of the section of roadway affected" and

"if appropriate,
with arrows or supplementary notices, defining their area or time of
application". This is subject to r 12.5(3) which provides that
the authority does not
have to provide signs to indicate a parking restriction "if parking is controlled by
parking meters that are
located at, or adjacent to, each parking space".


[26]    The Judge found that the pay and display machine was a meter and was
adjacent
to the relevant park. The consequence of these findings was that there did
not need to be signs which complied with r 12.5(1)(a).
At issue on appeal, as
clarified in oral submissions, is whether the pay and display machine is a "parking
meter" and whether it
was "at, or adjacent to" the parking space. If not, the issue is
whether the sign complied with r 12.5(1)(a). If the pay and display
machine is a
parking meter and is at or adjacent to the parking space, the issue is whether the
Council nevertheless needed to comply
with r 12.5(1)(a) because it chose to erect a
sign.


Parking meter


[27]    Mr McBride submits that a pay and display machine is
not a "parking meter"
within the meaning of the term used in r 12.5(3).


[28]    This Court considered whether a pay and display
machine is a parking meter
in McBride (No 1) at [19] to [26]. Counsel in that case had argued that a "meter"
carried the implication
that it measured time which a pay and display machine does
not. Justice Gendall considered that meters are things or instruments
which measure
or record a quantity of something. His Honour said that a pay and display machine
registers the time within which a
motorist may legally park in a designated space as
measured or fixed against the amount of money paid. He said that it regulates
the
length of time a vehicle may be parked and is activated by the insertion of money by
the motorist. He therefore held that the
"plain and ordinary meaning" of parking
meter encompassed such a machine (at [26]).


[29]    McBride (No 1) was decided under the
Traffic Regulations 1976 which
preceded the Rules. Mr McBride submitted that the decision could therefore be
distinguished. He noted
that the 1976 Regulations were passed before pay and

display machines were invented or in use. He also referred to the definition
of
"parking" in the Rules as referring to "parking meters or vending machines" and to
R6-59 of Schedule 1 which sets out detailed
sign specifications for "vending
machine zones". He says that these references show that the Rules differentiate
between pay and
display machines and parking meters.


[30]   I consider that the two references to vending machines in the Rules are
insufficient
to indicate that the Rules intend that pay and display machines are not
parking meters.     The term "vending machine" is not defined
in the Rules
Mr McBride has not provided any analysis of the Rules to indicate where the
"parking" definition applies, nor whether
parking meters and vending machines are
referred to separately in the Rules and, if so, in what context. Nor has he pointed to
anything
else in the Rules which necessitates or justifies distinguishing pay and
display machines from timed meters. In these circumstances
there is no reason why
Gendall J's reasoning as to the meaning of "parking meter" under the 1976
Regulations, which applied the plain
and ordinary meaning of "meter", does not
apply equally to the meaning of parking meter in the Rules. I therefore find that pay
and
display machines are parking meters for the purposes of r 12.5(3).


"At, or adjacent to"


[31]   Here Mr McBride submits that the pay and display machine was not "at,
or
adjacent to each parking space".


[32]   This court (Gendall J) dealt with the meaning of "at, or adjacent to" as used
in r 12.5(3)
in McBride (No 2). In that case the pay and display machines were 36
metres apart. In between were six spaces, the furthest park
from the meters (the
middle one) being 18 metres away from each of the two machines. Justice Gendall
referred to the wider meaning
of "adjacent" as being "near to ­ in the vicinity or
neighbourhood of" (at [27], quoting The Mayor, Councillors, and Burgesses of
the
Borough of Lower Hutt v The Mayor, Councillors, and Citizens of the City of
Wellington  [1904] 23 NZLR 519 (CA) at 525). His Honour considered that in this
context, "`adjacent to' must mean `near', `close' or `neighbouring', and something
more than `at'" (at [30]). He noted that the purpose of the Rules was to ensure that

motorists using a parking space are advised
of any parking restrictions, and that the
Rules appear to be concerned with "the degree of notification that is reasonably
required"
(at [38]). He considered that it was a matter of degree as to whether
parking spaces were sufficiently proximate to a parking meter
to be within the
meaning of "adjacent to". He concluded that the machines were "adjacent to" or
"nearby" the parking spaces because
any person parking within that group of parking
spaces could be expected to have seen the machines.


[33]   Mr McBride sought to
distinguish this decision because in this case the
nearest pay and display machine was 24.2 metres away from the parking space (ie.
a
distance further than in McBride (No.2)), there was only one machine (compared
with the two observable from any space in the parking
area in McBride (No. 2)) and
here there was an arrow on a sign within the parking space but which pointed away
from the majority
of that space. Mr McBride submitted that this combination of
differences from McBride (No. 2) meant that the parking meter was not
"at, or
adjacent to" the parking space.


[34]   On this appeal Mr McBride has not contested the finding made by the District
Court
Judge that the pay and display machine is clearly observable (as shown in a
photograph which was produced as an exhibit). The District
Court Judge also
referred to the unbroken sequence of marked parking spaces from the intersection at
the one end until the bus stop
at the other end of Cable Street; and that there was a
specific sign immediately beside and within the marked area of the parking
space
used by Mr McBride which drew the driver's attention to the designation of the area
and the location of the machine.


[35]
  As to that sign I agree with the District Court Judge that the sign draws the
driver's attention to the designation of the area
and the location of the machine. In
my view it does not matter that the sign pointed in a direction away from the
majority of the
space. The sign was located approximately one metre within the 5.4
metre parking space and so, as the photograph of the space also
shows, it was clearly
within the park. I consider that the other differences relied on by Mr McBride to
distinguish McBride (No.
2) are immaterial also.

[36]   In my view, a motorist parking in that space had notice that it was governed
by the pay and display
machine. Therefore, if the McBride (No. 2) purposive
interpretation of the term "adjacent" as used in r 12.5(3) were to be taken,
the pay
and display machine was a parking meter adjacent to the parking space and the sign
would not need to comply with r 12.5(1)(a).


[37]   In oral reply submissions Mr McBride submitted that if McBride (No. 2) was
not distinguishable on the facts, it was wrong
in any event and should not be
followed.     This submission was not advanced with any analysis.          The written
submissions
said that emphasis should be placed on the requirement that the sign be
adjacent to "each" parking space. It was also said that the
determinative factor was
not whether the pay and display machine was observable. The submissions were not
expanded upon to explain
why this meant that McBride (No. 2) should not be
followed. In the absence of analysis, and because I consider that the sign complied
with r 12.5(1)(a) in any event (as discussed below), I do not need to consider this
submission further.


Compliance with Rule 12.5(1)(a)


[38]   On this appeal Mr McBride raised two issues with the sign: namely that the
sign was not placed at the end of the section
affected by the restriction because it was
not at the (eastern) end of the last parking space (but instead was located towards the
beginning of that space); and secondly that the arrow on the sign here pointed
towards the west, away from the majority of the parking space.            Mr McBride
submitted that
it was relevant that the Council had subsequently shifted the position
of the sign to the end of this parking space.


[39]   Dealing
with that last point first, I consider that it does not matter that the
Council has subsequently moved the sign to the eastern end
of the last parking space.
Such a move was warranted to avoid the cost of defending any similar challenge in
the future.


[40] 
 Rule 12.5(1)(a) requires signs to be located "at each end of the section of
roadway affected". I consider that the words "at each
end" do not mean that the sign

must be positioned exactly on or just past the far boundary of the last parking space
affected.
The words do not say that. A sign clearly within the last parking space to
which the restriction applies is in my view a sign at
the end of the section of roadway
affected.      Such a sign achieves the purpose of clarity (recognised in Kelly v
Wellington City
Council  [1995] 3 NZLR 750 at 760) as to the area of the parking
restriction.


[41]    Rule 12.5(1) also requires, if appropriate, arrows defining the area
or
indicating the direction of the application of the parking restriction. In my view, the
fact that the arrow here points away from
a substantial portion of the parking space is
not reasonably construed as indicating that the parking restriction does not apply
to
the parking space, or that it only applies to the rear or western part of that space. The
latter certainly can not have been the
case because the parking space is delineated by
the marking on the road and it would be odd, to say the least, for the Council to
seek
to restrict a portion only of a marked parking space and not the balance (particularly
when all the other spaces between the
intersection and the bus stop were restricted).
I consider it would be clear to a motorist who parks in that space that the arrow
indicates both that this space and others in the westward direction are covered by the
restriction and also the direction in which
the pay and display machine can be
located.


[42]    For these reasons, I find that the sign here does comply with the requirements
of r 12.5 of the Rules.


Do the Rules' sign requirements apply in any event?


[43]    Mr McBride submitted that even if r 12.5(3)
applies (on the basis that the pay
and display machine is a parking meter and was located at or adjacent to the parking
space), in
circumstances where the Council chooses to erect a sign, as here, that sign
must comply with the requirements for parking signs in
r 12.5(1)(a).           There is
nothing in r 12.5 which supports Mr McBride's submission.              Rule 12.5(1) is
expressly
stated to apply "[e]xcept as provided in r 12.5(3)". Rule 12.5(3) provides
an exception to the general requirement that road controlling
authorities install
regulatory signs in accordance with the Rules to indicate requirements, restrictions or

prohibitions on road
users. The reason for the exception is presumably because a
parking metre at or adjacent to a parking space is sufficient notice
to a motorist that a
parking restriction applies.


[44]    Where the requirements of the Rules as to the signs do not apply Bylaw
18.2.2(d) requires that the "limits of parking meter areas controlled by multiple
parking meters shall be indicated by signs". For
the reasons already given I consider
that the sign here did indicate the limits of the parking meter area. In any event,
even if
the requirements of r 12.5(1)(a) applied, for the reasons given above, I am
satisfied that the sign complied with those requirements.


Costs


[45]    Both parties, if successful, sought costs under the Costs in Criminal Cases
Act 1967. Mr McBride accepted before
me that costs in accordance with the scale
should be ordered in the event that he was unsuccessful in his appeal. Mr McBride
has
been unsuccessful. Accordingly I order costs in accordance with the scale
against Mr McBride.




                              
                                                   Mallon J

Solicitors:
R Brown, John Miller Law, Wellington (email: info@jmlaw.co.nz)
S Quinn, DLA Phillips Fox, Wellington (email: stephen.quinn@dlaphillipsfox.com)



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