Mainey v Wellington City Council [2012] NZHC 1606 (6 July 2012)

Last Updated: 14 August 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-42 [2012] NZHC 1606

MICHAEL BRETT NEIL MAINEY

Appellant

v

WELLINGTON CITY COUNCIL

Respondent

Hearing: 3 July 2012

Counsel: Appellant in person

A M White for Respondent

Judgment: 6 July 2012

In accordance with r 11.5 I direct that the delivery time of this judgment is 4pm on the 6th day of July 2012.

_{RESERVED JUDGMENT OF MACKENZIE J}

[1] The appellant was issued with an infringement notice alleging an offence against s 40 of the Land Transport Act 1998. This offence involved a breach of r 6.4(1A) of the Land Transport (Road User) Rule 2004 of parking in an area reserved for disabled persons when not entitled to do so. The appellant elected to defend the infringement notice and the matter proceeded to a defended hearing before two Justices of the Peace on 13 April 2012. The Court held that the offence

_{had been proven beyond reasonable doubt, and fined the appellant the sum of $150,}

MAINEY V WELLINGTON CITY COUNCIL HC WN CRI-2012-485-42 [6 July 2012]

and ordered him to pay towing costs of $71.56 and Court costs of $132.89. The appellant appeals against that finding.

[2] At around 12:05pm on Sunday, 9 October 2011, a parking warden noted a car parked outside 10 Cambridge Terrace. The warden’s evidence was that on the footpath next to the car there were two cones with signage attached to them. He described them as being blue and white in colour and they said “Mobility Parking

4am Saturday to 6am Monday” with arrows indicating the area to which the sign applied. The parking restriction had been temporarily imposed because of a Rugby World Cup match that weekend. The warden was asked in evidence in chief whether he could confirm that the signs were in place before he started work at 8am on that Sunday. He said that the sign was placed before the events happened, the other day.

[3] It was Sunday and the car did not have a mobility permit. The warden filled out infringement notice number 81715327 and attached the notice to the wiper of the car. The warden subsequently called for a tow truck. After it had arrived, but before the car was towed, the appellant returned to his car. According to the warden, the appellant verbally abused him and threw the infringement notice at him.

[4] Before the Justices of the Peace, the appellant’s primary argument was that the cones were not there when he parked his car, or alternatively, that he did not see the cones with the signage. The respondent argued that the cones were in place at the time the appellant parked his car, and that the cones were in place when the infringement notice was issued, as evidenced by the photographs taken by the warden.

[5] The Justices of the Peace held:

[3] The Court has considered the evidence produced. Photographs clearly indicate the presence of signs and no collaborating evidence was produced indicating that they were not present when you parked your vehicle. Opportunity was given to you to produce further witnesses but you declined to do so.

[4] The Court is of the opinion that the matter has been proved beyond reasonable doubt.

[6] In his Notice of Appeal, the appellant states that his grounds for appeal are that the Justices of the Peace erred in respect of their assessment of the situation of the temporary cones. He says that it was not proven that the cones were in place when he parked his car, and he should not have to prove that they were not there.

[7] Mr Mainey appeared in person, and presented his oral submissions eloquently and succinctly. In his submissions, he indicated that he wished to read a statement from the passenger in his vehicle at the time of the incident. He had also sought to do this at the hearing in the District Court, when he gave his evidence. He indicated then that his witness was working on the day of the hearing so he wished to read her statement. The Court advised Mr Mainey that he could not read a statement from another person. Mr Mainey then suggested that he would require an adjournment. The Court advised that it would accommodate that request but Mr Mainey elected to proceed without the witness being called.

[8] When he sought to read the statement in his submissions to me, I informed Mr Mainey that if he wished to rely on that statement he would need to apply for leave to adduce evidence on the appeal. I indicated that it was most unlikely that leave would be granted, because the witness could have been called in the District Court and her evidence was not fresh. Mr Mainey accepted that indication and elected to proceed.

[9] Mr Mainey referred to his own evidence in the District Court to the effect that he had not seen the cones. He referred to the photographs produced and submitted that if the cones had been in the position as shown in the photograph he and his passenger could not have helped but see them.

[10] The essential issue on this appeal is whether the evidence of the parking warden was sufficient for the Justices to find that the signs had been placed before the appellant parked his vehicle. I do not consider that it was. It was necessary for the prosecution to prove that the parking restriction was in place when Mr Mainey parked his car. The warden’s evidence was not sufficient to establish that. He did not give evidence that he had firsthand knowledge of when the signs were placed. The fact that the signs on the cones indicated a restriction starting at 4am on the

Saturday was not by itself sufficient to prove that the cones were placed there before the restriction began.

[11] I find that the evidence was not sufficient to support the finding that, when

Mr Mainey parked his car, the restriction was properly imposed.

[12] Mr Mainey also raised what he described as a technical point. That was that the first letter that he received from the Council about the parking infringement notice, dated 17 October 2011, referred to the full value of the infringement notice as

$150. It did not include the towage fee of $71.56. That letter from the Council does not form part of the statutory process by which an infringement offence may be prosecuted. Both the infringement notice, and the Council’s letter of

6 December 2011 advising Mr Mainey of his right to elect to have the matter dealt with by the Wellington District Court, included the towage fee.

[13] Another aspect raised by Mr Mainey, in the District Court, was that the vehicle had not in fact been towed, because he returned to his car before that had happened. The evidence established that the towage company had been called, and the towage fee was accordingly properly incurred.

[14] The appeal is allowed. The finding is quashed and the fine and penalty are set aside.

“A D MacKenzie J”

Solicitors: DLA Phillips Fox, Wellington for Respondent

Copy to: Mr Mainey, Appellant, Wellington