Green v Watercare Services Limited [2012] NZHC 2308 (7 September 2012)

Last Updated: 2 October 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000046 [2012] NZHC 2308

BETWEEN WILLIAM JAMES GREEN First Appellant

AND GREEN ENVIRONMENTAL LIMITED Second Appellant

AND WATERCARE SERVICES LIMITED Respondent

Hearing: 25 and 28 June 2012

Counsel: MJ Porner and BJ Hart for Appellants

AM Adams and H Yiu for Respondent

Judgment: 7 September 2012

_{JUDGMENT OF ASHER J}

This judgment was delivered by me on Friday, 7 September 2012 at 3pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

MJ Porner, PO Box 47016, Ponsonby, Auckland 1144. Email: [e-mail] and [e-mail]

Crown Solicitor, DX CP24063, Auckland 1140.

Email: [e-mail] and [e-mail]

GREEN V WATERCARE SERVICES LTD HC AK CRI-2012-404-000046 [7 September 2012]

Table of Contents

_{Para No}

Introduction [1] More detailed facts [4] The decision [13] Section 5(2)(b) of the Trade Wastes Bylaw 1991 [17] The issues [20] The Judge’s findings of fact [23] Discharge under s 5 [28] Was this trade waste under s 5? [31] Section 5(3) [37] Trade premises [42] Section 85(3) [49] Breach of s 24(d) of the New Zealand Bill of Rights Act [54] Are the charges nullities?

Are the s 5(2)(b) charges nullities? [57]

Is the s 77(2) charge a nullity? [72] Conclusion on the available penalties [76] Was Watercare the proper prosecuting authority? [77] Section 77 – drains not connected to “trade premises” [79] Evidence points [85]

Sentence

Discharge without conviction [91]

The size of the fines [96] Costs [99] Result [100]

Introduction

[1] On 2 July 2009 the appellant William James Green and another were observed parking a green septic tank truck beside a manhole. A hose was connected from the back of the truck into the manhole and it appeared that a valve was opened. When Mr Green was asked if he had a permit to dump material at the sewer Mr Green responded “no”. The sound of material discharging into the sewer could be heard and there was a smell of septic tank sewage.

[2] On 17 November 2011 Mr Green and the company in which he is a shareholder, Green Environmental Ltd, were convicted on three charges relating to the discharge. Ultimately they were sentenced to a fine of $18,000 (each defendant

to pay $9,000) plus costs. This is an appeal against those convictions and the sentence.

[3] The appellants have filed 54 pages of submissions and raised approximately

16 points of appeal, some relating to matters of jurisdiction and law, and others relating to matters of fact.

More detailed facts

[4] The primary witness for the respondent Watercare Services Ltd (Watercare) was a Mr Brian Smith who is a competitor of the appellants. He recognised Mr Green on the motorway and followed his truck to where it stopped in Luke Street, Otahuhu. He observed a young man get out of the truck and uncover a manhole on the side of the road. He attached a large vacuum hose from the side of the truck to the back of the truck, putting the other end down into the manhole. The young man then opened the valve which appeared to connect the truck and the hose.

[5] Mr Smith observed Mr Green getting out of the truck. Mr Smith approached him and asked him if he had a permit to dump the material into the sewer. Mr Green responded “no”. Mr Smith asked Mr Green why he was not dumping the material at a processing outlet. Mr Green responded that they were “rip offs” and that his customers could not afford that price. He informed Mr Smith that he was only dumping material directly into the sewer system until he could build his own treatment plant.

[6] During the course of this discussion Mr Smith could hear coming from the pipe and drain the sound of material discharging, and he could smell a sewage-like smell which is common in septic tanks. He identified it as a particular smell, different from that which normally comes from manholes when opened. Mr Smith stated under cross-examination that after many years in the industry he could identify by smell the difference between septic tank waste and fresh human waste sewage material. At the time he was standing approximately 10 to 12 feet away from the manhole.

[7] Mr Smith then observed the young man pick up the hose and put it back on the truck and Mr Green and the young man then drove away. It was accepted that the appellants were not authorised to discharge waste at Luke Street, Otahuhu.

[8] An employee of Watercare, Mr Hamish Jones, went to the manhole in question the day after the alleged discharge was observed. He observed inside the manhole debris which included faeces, twigs and grit hanging off the rungs of an access ladder. He took photographs of the scene which were produced at the hearing. He considered this material consistent with the discharge into the drain. There was no such debris in two other manholes that he examined which were nearby.

[9] Mr Jones is an experienced officer and it was his opinion based on his observations that the material he found in the manhole resulted in a discharge into it down through the manhole. There was also evidence given that domestic waste differs from septic tank waste and is more concentrated in nature.

[10] There was a meeting between a Watercare officer and Mr Green on 30 July

2009. Mr Green denied discharging septic tank waste into the sewer through the manhole. His explanation was that he had parked the truck next to the manhole, unloaded the hose and then connected it to his truck so that he could go to the toilet. It was a way of keeping people away from the area while he urinated.

[11] The first appellant Mr Green was charged that contrary to s 5(2)(b) of the Auckland Regional Council Trade Wastes Bylaw 1991 (the bylaw), he discharged or permitted to be discharged, trade waste except as authorised by a current consent. The second appellant Green Environmental Ltd was also charged that contrary to s 5(2)(b) of the bylaw, it discharged or permitted to be discharged, trade waste except as authorised by a current consent, and faced a further charge under s 77(1) of the Auckland Metropolitan Drainage Act 1960 of connecting a trade waste drain to a public sewer without a current consent.

[12] Mr Green gave evidence at the hearing and denied discharging the sewage. He admitted that the hose had been attached to the truck and put into the manhole.

He said that he did so he could attend to the haemorrhoids that he was suffering from, and also to urinate. He intended to apply cream to those haemorrhoids. He put forward receipts and logbooks which he said corroborated his version of events.

The decision

[13] Judge Eivers accepted the evidence of Mr Smith and the Watercare witness, Mr Rogers. He found their evidence to be consistent and forthright. He noted that Mr Green’s evidence was inconsistent with that of Mr Smith and Mr Rogers. Mr Green had not mentioned his haemorrhoid condition when he gave his initial explanation to Watercare. He noted differences in the explanations Mr Green had given about a trip to the North Shore treatment plant. He said of Mr Green’s

explanation that it seemed “incredible and indeed quite implausible”,1 noting that the

act of putting the hose onto the truck and into the manhole would have taken more time than would have been required to attend to the personal matters Mr Green referred to. He also noted that Mr Green did not deny a discharge was occurring when he spoke to Mr Smith. He preferred the evidence of the Watercare witnesses.

[14] The Judge directly considered the legal arguments put forward and found the elements of the charges proven. The defendants were convicted on each and every charge.

[15] The sentencing hearing took place separately on 17 February 2012.2 Judge Eivers adopted a starting point for the offending of a fine of $20,000. Allowing as a mitigating factor the appellants’ lack of previous convictions, he imposed a fine of

$18,000 on the breach of the bylaw charge. This was to be by $9,000 being paid by each appellant. In respect of the breach of s 77 of the Auckland Metropolitan Drainage Act, Green Environment Ltd was convicted and discharged.

[16] The Court exercised its discretion to award costs against the appellants. Scale costs of $1,356 were ordered under the Costs in Criminal Cases Act 1967, and

1 Watercare Services Ltd v Green DC Manukau CRI-2009-092-506415, 17 November 2011 at

_[67].

2 Watercare Services Ltd v Green Environmental Ltd DC Manukau CRI-2009-092-20762,

17 February 2012.

$5,000 additional costs were ordered under s 4(1) of that Act. The Court noted the special difficulty and complexity of the case, and also that a number of unmeritorious arguments were raised and that many points were raised at the last minute. The $5,000 additional costs were to be paid as to half each by the appellants.

Section 5(2)(b) of the Trade Wastes Bylaw 1991

[17] The appellants in their submissions of 14 June 2012 appeal on the following grounds:

(a) the informations are nullities;

(b) the respondent is not the proper prosecuting authority;

(c) the substance allegedly discharged does not fall within the definition of “trade waste” set out in s 2 of the Auckland Metropolitan Drainage Act;

(d) the alleged discharge was not from “trade premises” as required by s 83 of the Auckland Metropolitan Drainage Act;

(e) the alleged discharge was not shown to have been in excess of the volume or rate set out in s 5(3) of the bylaw;

(f) it was not proved beyond reasonable doubt that any discharge occurred;

(g) the destruction of the evidence collected from the manhole was a breach of ss 24(d) and 25(a) of the New Zealand Bill of Rights Act

1990; and

(h) the prosecution was barred under s 85(3) of the Auckland

Metropolitan Drainage Act.

[18] Section 5 of the Trade Wastes Bylaw 1991 provides:

5 Discharge of noxious matter, injurious substances and other trade wastes

(1) No person shall discharge or permit to be discharged any noxious matter.

(2) No person shall discharge or permit to be discharged:

(a) Any injurious substance, except as authorised by a current consent; (b) Any other trade waste, except as authorised by a current consent.

...

(3) Notwithstanding anything in subsection (2), trade wastes which do not contain noxious matter or any injurious substance may be discharged without a consent, provided that the total volume discharged on any one day is less than 4 cubic metres and that the highest rate of discharge is less than 0.05 litres per second.

(emphasis added)

[19] The requirements therefore are: (a) a discharge; (b) of trade waste; (c) not authorised by a current consent; and (d) the volume discharged exceeds that specified in s 5(3).

The issues

[20] It is difficult to be more precise as to the issues raised in the grounds of appeal as the appellants have not attempted to summarise them. Ms Porner who mainly presented the submissions for the appellants, although not speaking to all the points raised in the written submissions, did not abandon any of them.

[21] The appeal was originally set down for hearing on 14 May 2012 but was adjourned to 25 June 2012 due to the appellants’ failure to meet timetabling deadlines. Following timetabling orders made by Brewer J on 9 May 2012, on

18 May 2012 some 14 points of appeal were referred to in a notice of appeal. It was indicated at that point that the sentences imposed were not being appealed. However, in the submissions filed on appeal on 14 June 2012 (over a week later) two

further points of appeal on issues that had been conceded or not raised in the District Court were put forward. The submissions also indicated that the sentences imposed were appealed if the conviction appeals were not successful.

[22] This is an appeal under s 121 of the Summary Proceedings Act 1957. It is by way of a re-hearing and the Court can reach a different view of the facts to that taken by the Court below.3 However, in a case involving contested issues of fact and credibility, the Court must be aware that it has not had the advantage of seeing and hearing the evidence as it was given. The appellant has the onus of satisfying the appellate Court that it should differ from the original decision, but the appellate

Court must come to its own view on the merits.

The Judge’s findings of fact

[23] Watercare presented a formidable body of proof. I have referred to

Mr Smith’s evidence and the supportive evidence of Mr Rogers. The Judge noted:4

Conversley, the defendant’s evidence was inconsistent with that of Mr Smith and Mr Rogers on a number of key points.

The Judge preferred the evidence of Mr Smith and Mr Rogers.

[24] I have already referred to the Judge’s reference to the inherent implausibility of Mr Green’s explanation. In contrast, the evidence of Mr Smith and Mr Rogers was on its face coherent and believable. There are a number of gross inconsistencies in Mr Green’s evidence. He changed his story about just wanting to urinate and added much later that he wished to treat his haemorrhoids. He provided two versions of the trip he said he made to the North Shore treatment plant in relation to the material from the septic tank.

[25] Mr Rogers’ evidence was that the truck log that Mr Green showed him noted that there was a visit to Papakura on 2 July 2009 and a visit to the North Shore treatment plant on 3 July 2009. In Court Mr Green’s evidence was that he went to

_{the North Shore treatment plant on 9 July 2009. He produced a logbook to show}

3 _{Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.}

4 Watercare Services Ltd v Green, above n 1, at [66].

that. However, he was unable to produce any evidence of the job done in Papakura on 2 July 2009, except the production in Court two years later of a receipt book. However, the sequence from the receipt book was missing between 2 July and 9 July

2009. He claimed that his son had made an error and ripped all the pages of that sequence out.

[26] It is easy to see why the Judge had difficulty accepting Mr Green’s explanation for the events. Of particular importance was the fact that Mr Green did not really challenge Mr Smith’s evidence which outlined the conversation at the time of the alleged discharge. In that conversation Mr Green did not deny to Mr Smith that he was discharging sewage. Rather, he acknowledged that he had no permit and stated that the charges were a “rip off”. There was nothing said or done to indicate that the fixing of the pipe to the sewer was a front for Mr Green to attend to personal matters.

[27] There was ample evidence to support a finding that Mr Green and his company were deliberately breaching the bylaw and carrying out a clandestine and illegal discharge to save the North Shore permit fee, which was approximately $500. I conclude that the Judge was correct when he found the facts relied on by the Crown proven beyond reasonable doubt.

Discharge under s 5

[28] Discharge is defined in s 3 of the bylaw as meaning “discharge trade wastes to or into a sewer whether directly, or indirectly by means of any drain ...”. A “drain” is defined as meaning “a trade wastes drain, and includes any drain conveying trade wastes from any trade premises”. Trade premises are not defined.

[29] It is stated at s 3(b) that other expressions in the bylaw have the same meaning as in the Act, the Act being defined in s 3(1)(a) as the Auckland Metropolitan Drainage Act 1960. The Auckland Metropolitan Drainage Act broadly defines trade wastes in s 2 as follows:

Trade wastes means any liquid, with or without matters in suspension or in solution therein, which are being or may be discharged in the course of any

trade or industrial process or operation or in the course of any activity or process or operation of a like nature or from business premises such as abattoirs or saleyards; but does not include–

(a) Condensing water; or

(b) Surface water which is discharged direct to a surface-water drain: (emphasis added)

[30] I am satisfied that there was a discharge in a physical sense. It is also clear there was no consent. The issue that requires consideration is whether the septic tank effluent discharged falls within the definition of trade wastes.

Was this trade waste under s 5?

[31] There is no doubt that effluent that has been pumped out of a septic tank held in a truck tank and then discharged into a sewer is liquid. The question is whether in terms of the definition, effluent is being or may be discharged “in the course of any trade or industrial process or operation or in the course of any activity or process or operation of a like nature or from business premises such as abattoirs or saleyards

...”.

[32] Mr Green admitted at the time of the alleged offending that 4,500 litres of the emptied contents of a household septic tank were in the truck. Although he stated that this was ultimately disposed of at the North Shore Wastewater Treatment Plant, this was clearly not accepted by the District Court Judge. Green Environmental Ltd’s website, which was in evidence before the Court, showed that the company was in the business of emptying septic tanks. Mr Green in his explanation to Mr Rogers stated that he had conducted a waste pickup and that the truck was three- quarters full.

[33] There was argument whether the transformation of domestic sewage through the septic tank process into septic tank waste, and then the transfer of that waste into the truck of a commercial operator whose business was to remove and discharge trade waste, converted the waste material into trade waste.

[34] I accept the evidence that there is a change in composition and smell to human waste in the process of it sitting in a septic tank. However, that does not seem to me to be the issue. The real point is that the material, once it was in the possession of Mr Green and Green Environmental Ltd, was being held by it in the course of its business. I have no doubt that the term trade includes any business or commercial activity for profit. The business in question was the emptying of septic tanks and the removal of the material and its later discharge. The truck held a 9,000 litre tank. It was the trade of the appellants to uplift the material, hold it and then discharge it. The discharge from the appellants’ truck was in the course of the discharge “operation”.

[35] Any waste, domestic or otherwise, can become trade waste if it is held for the purposes of trade and discharged in the course of business. In the septic tank it had been domestic sewage, but once in the appellants’ possession and part of his commercial operation, it became waste held for the purposes of trade. I am satisfied that there was a discharge of trade waste.

[36] Thus, I consider that the ingredients of a discharge of trade waste, and of it not being authorised, have been met. It is now necessary to consider the lack of consent that is required under s 5(3).

Section 5(3)

[37] There may be a discharge without consent providing the total volume discharged on any one day is less than four cubic metres, and the highest rate of discharge is less than 0.05 litres per second. Both these criteria must be met. Does that proviso in s 5(3) of the bylaw apply?

[38] Putting to one side the issue of where the onus of proof lies, on the evidence adduced the Crown has proven that the proviso does not apply.

[39] By Mr Green’s own admission, the material in his truck constituted 4,500

litres from a septic tank. It can be assumed with absolute safety that if Mr Green set

out to remove the contents of a septic tank, the contents will within seconds exceed four cubic metres.

[40] Mr Smith smelt the waste when he was next to the truck and positively identified it as septic tank-type material. There was other evidence supporting the proposition that that material had a particular smell, different to normal sewage. He heard the sound of discharge. It was proven beyond reasonable doubt that the material from the septic tank emptied earlier in the day was being discharged.

[41] Given that the evidence was sufficient to show beyond reasonable doubt that the volume discharged was more than four cubic metres, it is therefore not necessary to address the arguments that were made as to the reversal of the onus.

Trade premises

[42] The appellants argue that discharges must come from “trade premises”. Otherwise it is submitted s 5 is ultra vires the section empowering the making of bylaws in the Auckland Metropolitan Drainage Act. Section 83(1) of that Act provided:

The Board may make bylaws (hereafter in this Act referred to as trade wastes bylaws) with respect to the discharge of any trade wastes, or trade wastes of any particular nature or composition, from trade premises into any public sewer, and any such bylaws may provide for all or any of the following matters ...

(emphasis added)

[43] The appellants submit that to avoid the conclusion that s 5 of the bylaw is ultra vires, it must be read as applying to discharges only from trade premises.

[44] Trade premises are defined in the Auckland Metropolitan Drainage Act as:

Trade premises means any premises from which any trade wastes, condensing water, or noxious matters are being or may be discharged

[45] This definition requires a consideration of what is meant by the word

“premises”. “Premises” is not defined in the Auckland Metropolitan Drainage Act

nor in the bylaw. Dictionary definitions tend to focus on houses or buildings or tenements,5 but in a legal context the word is frequently given a wider meaning. In the High Court Rules in the context of search orders it is stated:6 “premises includes a vehicle or vessel of any kind”. In the Land Transport Act 1998, “premises” is defined as including a vehicle. In the Fisheries Act 1996 premises is defined as including a vessel or a vehicle. In the Sale of Liquor Act 1989, licensed premises

include a conveyance or any part of a conveyance in which liquor may be sold. In the Hazardous Substances and New Organisms Act 1996 premises includes a vehicle.

[46] I consider that this wide meaning applies in the context of s 83. The requirement of a discharge from trade premises follows from the requirement that the discharge be of trade wastes. Trade waste can be expected to emanate from places where trade is conducted. That is the policy behind the requirement, rather than an intention to restrict “trade premises” to land and buildings, which would have no obvious purpose. It can be assumed from the apparent intention, to give Boards a broad power to make trade waste bylaws, that no such limitation was intended by Parliament. Rather, the place from which the discharge is made is required to be a place from which trade is conducted. A truck is such a place.

[47] Thus, although the drafting would have been assisted by a definition of “premises” along the lines of that found in other Acts, the overall meaning is clear. Section 5 is not ultra vires, and this discharge, being a discharge from a vehicle, was a discharge within the meaning of s 5 construed in the light of s 83.

[48] The appellants’ position would also be inconsistent with the recent parliamentary endorsement of s 5 of the bylaw in ss 25 and 26 of the Local Government (Auckland Transitional Provisions) Act 2010. In s 26(1) of that Act there is a reference to every person who breaches s 5 of the bylaw committing an offence and being liable on summary conviction to a fine not exceeding $200,000. This reference can be seen as a recognition by Parliament that s 5 is an existing valid bylaw. Any other conclusion would mean that Parliament was perpetrating an ultra

vires rule. It was observed in New Zealand Trotting Conference v Ryan7 that parliamentary endorsement of subordinate legislation or rules precludes any subsequent challenge to the validity of those rules.8 Parliament can be understood to have accepted the validity of s 5 at the time of its endorsement in 2010.

Section 85(3)

[49] Section 85(3) of the Auckland Metropolitan Drainage Act provides:

No legal proceedings shall be instituted, and no charges for pretreatment of trade wastes assessed, if based upon any sample taken by any authorised officer or agent of the Board, unless at the time of taking such sample he shall have delivered a portion thereof to the occupier of the trade premises affected or his agent and after analysis of the portion retained shall have supplied the occupier with details of the result of such analysis.

[50] The appellants argue that this was a case based upon a sample, and a portion was not delivered to the occupier of the trade premises and a portion retained after analysis. Therefore the charges should have been dismissed.

[51] The appellant is referring to the fact that when Mr Jones of Watercare went to Luke Street, he opened up the manhole in question and took samples of the waste that he found inside and took that waste away. He described the material as being faeces and sand-sized grit which looked like a septic tank-type waste. It was a visual identification only. He gave the jar containing the sample to a laboratory and it was disposed of. No test was carried out to analyse the contents of the jar as it was considered that a visual observation was sufficient.

[52] The only evidence put forward was of Mr Jones’ visual observation. Nothing from the sample was put forward as evidence. The reference to the sample was part of the narrative, but not part of the proof. In those circumstances s 85(3) does not apply. The legal proceedings were not “based” on the sample in the way that a charge of driving with excess blood alcohol might be based on a blood sample that was taken.

[53] It is to be expected, in fairness to a defendant, that if a prosecution is based upon a sample, that the defendant will get a portion of the sample so that the defendant can carry out its own analysis. Otherwise the defendant is at a disadvantage if he denies the offending and seeks to show the analysis of the sample or the chain of proof inadequate. But a proviso of this type is not invoked simply because the prosecuting authority chooses to take a sample. If that sample is not used to prove the case, the protection that s 85(3) understandably provides to a defendant is not required. This argument cannot succeed.

Breach of s 24(d) of the New Zealand Bill of Rights Act

[54] Section 24(d) of the New Zealand Bill of Rights Act 1990 provides:

24 Rights of persons charged

Everyone who is charged with an offence—

...

(d) shall have the right to adequate time and facilities to prepare a defence;

...

[55] In a variation on the submission referred to in the previous section, it is submitted that the appellants were not given adequate time and facilities to prepare a defence as they were not given part of the sample that was taken so that they could carry out their own tests. The appellants’ position appears to be that there was an obligation on the informant’s part to provide the sample as potentially exculpatory material.

[56] This submission involves a misreading of s 24(d). The appellants had all the “time and facilities” they could wish to go into the manhole and take samples. It was up to them. The respondent did nothing to stand in their way. The respondent had no obligation to help them prepare a defence and, under s 24(d), had no obligation to pass on part of a sample that was taken that was not going to be relied on as part of the proof of the informant’s case.

Are the charges nullities?

Are the s 5(2)(b) charges nullities?

[57] A new point was raised in this Court, not raised in the District Court, that by virtue of the available penalties the informations are nullities. This argument, as I understand it, is that the maximum penalty available for breach of s 5(2)(b) of the bylaw at the time of the offence on 2 July 2009 was only $500 and not the $200,000 assumed by the Court. It is submitted that the informations should have been minor informations, rather than summary informations in the form used in the District Court.

[58] Section 26 of the bylaw provides:

26 Offences and Penalties

(1) Every occupier or other person who contravenes subsections (1) or (2) of section 5, or who fails to comply with any term or condition of a consent, and every occupier who contravenes any other provision of this bylaw, commits an offence under this bylaw and shall be liable to the penalties set out in section 493 of the Local Government Act 1974, by virtue of section 28(2) of the Auckland Regional Authority Act 1963.

(2) For the purposes of this section the occupier of any trade premises where or in respect of which an offence under this bylaw is committed shall be liable to the penalty, irrespective of whether or not the occupier personally committed the offence.

(emphasis added)

[59] It is necessary then to turn to the penalties sections referred to. Section 28(2)

of the Auckland Regional Authority Act 1963 provides:

28 Bylaws

...

(2) Every person who commits a breach of, or who (by virtue of section 86 of the Auckland Metropolitan Drainage Act 1960) is guilty of an offence under, any trade wastes bylaws made by the Authority under section 83 of that Act shall be liable to the penalties set out in section 493 of the Local Government Act 1974.

(emphasis added)

[60] This rather convoluted process of statutory reference arises from the fact that the Auckland Metropolitan Drainage Act stands alone. However, trade wastes in relation to other areas of New Zealand fall directly under the Local Government Act

1974. Section 493(1) of that Act provided:

493 Offences against trade wastes bylaws

(1) Notwithstanding section 683(1) of this Act and without limiting the power of a District Court to grant an injunction under section 683(2) of this Act, if any trade wastes bylaw is contravened or not complied with in the case of any trade premises, the occupier of the premises commits an offence and is liable to a fine not exceeding $10,000 and, if the offence is a continuing one, to a further fine not exceeding $1,000 for every day or part of a day during which the offence has continued.

(emphasis added)

[61] Section 493 was repealed on 1 July 2003 by the Local Government Act 2002. It was replaced by s 242(5) of that Act as follows:

242 Penalties for offences

...

(5) A person who is convicted of an offence against a bylaw made under section 146(a)(iii) (which relates to trade wastes) is liable to a fine not exceeding $200,000.

[62] The appellants appear to argue that s 242(5) cannot apply, given that there is no express reference to it in s 28(2) of the Auckland Regional Authority Act. therefore the only current penalty provision is s 493.

[63] However, there can be no doubt that s 242(5) was intended to replace s 493. Section 22(2) of the Interpretation Act 1999 provides:

A reference in an enactment to a repealed enactment is a reference to an enactment that, with or without modification, replaces, or that corresponds to, the enactment repealed.

(emphasis added)

“Enactment” means the whole or a portion of an Act or regulation.9

[64] It was held in Re Eskay Metalware Ltd (in liq)10 that in relation to the predecessor of s 22(2):

The criterion to be applied is whether the subsequent enactment was passed “in substitution for” the repealed provision. ... [I]t cannot extend to a new provision that is essentially different in kind. To be “in substitution for” means to be put in the place or stand in the stead of the repealed provision. It follows that the new enactment must be of the same character as its predecessor: it must have the same kind of function and the subject-matter must be essentially the same without necessarily being identical in its scope. But, provided the new provision is directed to the same end, there need not be precise correspondence in the manner of dealing with the subject matter.

Therefore, the reference to s 493 in s 28(2) should be taken to refer to s 242(5).

[65] As a further point, the reference in s 242(5) to bylaws made under s 146(a)(iii) of the Local Government Act 2002 relating to trade wastes should be taken to include also the bylaw made under the now-repealed s 83 of the Auckland Metropolitan Drainage Act, also relating to trade wastes.

[66] Given that a reference to a repealed provision can be taken to be a reference to the replacement provision, I consider that the converse will also be true, so that a reference to the replacement provision could also be taken to include the original provision that it replaced, if the replacement provision was passed in substitution for the original. This is because s 20 of the Interpretation Act provides:

20 Enactments made under repealed legislation to have continuing effect

(1) An enactment made under a repealed enactment, and that is in force immediately before that repeal, continues in force as if it had been made under any other enactment—

(a) that, with or without modification, replaces, or that corresponds to, the enactment repealed; and

(b) under which it could be made.

(2) An enactment that continues in force may be amended or revoked as if it had been made under the enactment that replaces, or that corresponds to, the repealed enactment.

(emphasis added)

[67] It could be said that s 146(a)(iii) of the Local Government Act 2002 corresponds to s 83 of the Auckland Metropolitan Drainage Act 1960, which was repealed as from 1 November 2010 by s 114(1) of the Local Government (Auckland Transitional Provisions) Act 2010. Because s 83 was repealed long after the 2002

Act had already been in force, it could not be said that s 146(a)(iii) of the 2002 Act

“replaces” s 83, in the terms of s 20(1)(a). Nevertheless, it could still be said that s

146(a)(iii) “corresponds to” s 83. Even though the wording of the two sections is quite different, both s 146(a)(iii) and s 83 cover the same subject matter, that is, the regulation of trade wastes.

[68] Moreover, I am satisfied that the Trade Wastes Bylaw 1991 could have been made under s 146(a)(iii). If anything, the terms of s 83 are more prescriptive than s

146(a)(iii). Accordingly, the requirement of s 20(1)(b) of the Interpretation Act is satisfied.

[69] Applying s 20 of the Interpretation Act, the Trade Wastes Bylaw 1991 can therefore continue in force as if it had been made under s 146(a)(iii). This would mean that the maximum fine of $200,000 under s 242(5) would also apply to a person convicted of a bylaw made under s 83.

[70] Although it applies to a timeframe after the events in question, it is relevant also that following the integration of Auckland’s government on 1 November 2010, ss 25 and 26 of the Local Government (Auckland Transitional Provisions) Act 2010 provide that every person who breaches s 5 of the Trade Wastes Bylaw 1991 commits an offence. That person is liable on summary conviction to a fine not exceeding $200,000. This confirms the parliamentary intention that there be a fine of $200,000 for a breach of s 5, consistent with the interpretation placed on s 242(5) of the Local Government Act 2002.

[71] Therefore, by virtue of s 242(5) the applicable fine is $200,000. These were not minor offences, and the informations under s 5 were not nullities.

Is the s 77(2) charge a nullity?

[72] The other charge against Green Environmental Ltd was under s 77(1) of the Auckland Metropolitan Drainage Act. This prohibits persons from connecting a trade waste drain to a public sewer without the consent of Watercare. It is argued also that this information was a nullity.

[73] Section 93 of the Auckland Metropolitan Drainage Act provided at the time of the offending:

93 Offences under Act

Any person doing anything contrary to the provisions of this Act, or omitting or failing to perform any duty imposed on him by or arising under this Act, shall be guilty of an offence, and in cases where no other penalty is provided shall be liable to a fine not exceeding the penalty set out in section 683(1) of the Local Government Act 1974 in the case of a single breach ...

[74] Section 683 of the Local Government Act 1974 was therefore the relevant section setting out the penalty. That section provided for a maximum penalty of

$500 for a breach of general council bylaws. But on 1 July 2003 this was replaced by s 242(4) of the Local Government Act 2002. Section 242(4) imposes a penalty for breaches of general council bylaws as follows:

242 Penalties for offences

...

(4) A person who is convicted of an offence against a bylaw made under Part 8 (other than a bylaw made under Part 8 referred to in subsection (5)) is liable to a fine not exceeding $20,000.

(emphasis added)

[75] Consistent with s 22(2) of the Interpretation Act 1999, the reference in s 93 of the Auckland Metropolitan Drainage Act to s 683 of the Local Government Act 1974 should be read as referring to s 242(4) of the Local Government Act 2002.

Conclusion on the available penalties

[76] I conclude that the applicable penalties for breaches of s 5(2) and s 77 were

$200,000 and $20,000 respectively. Therefore, neither charge was a nullity.

Was Watercare the proper prosecuting authority?

[77] In the District Court the appellants took no issue with the fact that the respondent Watercare Services Ltd was the proper informant.11 They now do. However, I am satisfied at the time of the offending in July 2009 and at the commencement of the prosecution, and indeed at the time of hearing, it was necessary to treat Watercare for all intents and purposes as the Auckland Metropolitan Drainage Board (the Drainage Board), and that all references in the

Auckland Metropolitan Drainage Act to the Board should be read as referring to Watercare. This is because by a lengthy but clear trail Watercare has inherited the powers of the Drainage Board.

[78] In this regard I accept the summary of the historical trail put forward by

Ms Adams for the respondent. That trail is as follows:

(a) 1960 – the Drainage Board was constituted pursuant to s 9 of the

Auckland Metropolitan Drainage Act.

(b) 1964 – Auckland Regional Authority was constituted pursuant to s 4 of the Auckland Regional Authority Act 1963. Auckland Regional Authority took over the Drainage Board’s assets, undertakings, liabilities and powers by virtue of s 43 of the Auckland Regional Authority Act 1963.

(c) 1989 – Auckland Regional Council was formed under the Local Government Amendment Act (No 2) 1989. Pursuant to ss 15 and 25 of the Local Government (Auckland Region) Reorganisation Order

1989, Auckland Regional Authority’s assets and powers were vested

in Auckland Regional Council.

(d) 1992 – Watercare was established pursuant to the Local Government

_{Amendment Act 1992.}

11 Watercare Services Ltd v Green, above n 1, at [17].

(i) Assets comprising the wastewater and sewerage system were transferred from Auckland Regional Council to Watercare and the Auckland Regional Council’s functions in respect of those assets were similarly transferred pursuant to s 594ZK of the Local Government Act 1974 (now repealed).

(ii) As at 1 July 1992, certain of Auckland Regional Council’s powers under the Local Government Act 1974 were conferred on Watercare by virtue of s 707ZF of the Local Government Act 1974.

(e) 1998 – in October 1998, s 707ZF of the Local Government Act 1974 was replaced by s 707ZZZS of the Local Government Act 1974.

(i) Pursuant to s 707ZZZS(1)(e) of the Local Government Act

1974, Watercare continued to hold the Auckland Regional

Council’s powers.

(ii) Pursuant to s 707ZZZS(1)(f) of the Local Government Act

1974, Watercare continued to hold the power to apply the Trade Wastes Bylaw 1991 (as if it were the Auckland Regional Council) and exercise the powers of the Drainage Board under the Auckland Metropolitan Drainage Act until 30 June 1999.

(iii) This period was progressively extended by Order in Council, most recently until 30 June 2010 by the Local Government (Watercare Services Limited) Order 2007, which was then extended to apply until 31 October 2010 by s 55 of the Local Government (Tamaki Makaurau Reorganisation) Act 2009.

(f) 1 November 2010 to present – Watercare continues to own all main sewage works and treatment in the Auckland district (as originally defined in the Auckland Metropolitan Drainage Act), including all

assets, undertakings and liabilities originally vested in the Drainage

Board and as transferred to Watercare in 1992.

(i) By virtue of ss 25(3) and (4) and 114 of the Local Government (Auckland Transitional Provisions) Act 2010, Watercare is obliged to administer and enforce the Auckland Regional Council bylaw and s 77 of the Auckland Metropolitan Drainage Act and has the necessary powers of the Drainage Board to do so, under surviving Auckland Metropolitan Drainage Act provisions.

(ii) From 1 November 2010 Watercare also owns the assets previously owned by the terminated Auckland local authorities that are used for or relate to retail wastewater services.

Section 77 – drains not connected to “trade premises”

[79] The appellants submit in relation to the s 77 charge that the section only applies to drains connected or intended to be connected to “trade premises”. I have already considered the issue of trade premises. However, it is necessary to consider the argument that the hose connection between the tank and the sewer was not a trade wastes drain. Section 77(1) provides:

77 Trade waste drains

(1) After the passing of this Act, no trade wastes drain shall be connected to a public sewer within the drainage district, nor shall any trade wastes drain connected to a public sewer within the drainage district be altered or extended, without the prior consent of the Board; and in granting any such consent the Board may impose such reasonable conditions as it may deem necessary to enable effect to be given to the relevant provisions of this Act.

(emphasis added)

[80] “Trade wastes drain” is defined in s 2(1) of the Auckland Metropolitan

Drainage Act:

Trade wastes drain means any pipeline, channel, culvert, or ditch conveying or intended to convey trade wastes with or without condensing water to any

public sewer or direct to any watercourse, tidal waters, or other place of disposal

(emphasis added)

[81] For the reasons already given I am satisfied that a truck is a premises. However, I accept Ms Adams submission that trade waste drains are defined by their contents, or intended contents, and not by virtue of their origin.

[82] I see no reason why the flexible hose of a truck which connects a tank to a sewer cannot fall within the definition of “trade waste drain”. A pipe can be defined as a tube used to convey water, gas, oil or other fluid substances.12 A pipeline can be regarded as a long pipe used for conveying liquids. While a pipeline might be typically underground or on the ground, I do not regard the word as limited to pipes in that situation.

[83] I do not believe that the legislature would have intended when defining trade waste drain to limit any pipeline by length. There would be no policy reason for such a limitation. The purpose of s 77(1) is clear; it is to prohibit the drainage of trade waste into public sewers unless there is prior consent given by the Board. In this instance a pipe of some length was used, albeit a flexible pipe, and while in ordinary parlance the word “pipe” would be used rather than “pipeline” the latter word has broad enough meaning to include the pipe in question. For reasons that I have already given, the pipe was carrying trade waste.

[84] I am also satisfied that it was connected to the public sewer. Connection does not require any mechanical clamp or connection. All that is required is the fact of connection in the sense of the drain being able to discharge into the public sewer by virtue of it being placed in the sewer or in such proximity to the sewer that its contents will empty into the sewer. A proximity that will conveniently allow

_{discharge into the other body will constitute a “connection”.}

12 The New Zealand Oxford Dictionary (Oxford University Press, Wellington, 2005).

Evidence points

[85] It was suggested in the written submissions, although not pursued orally, that it was wrong for the respondent to file evidence by way of witnesses’ briefs of evidence prior to the hearing, and an opening statement attaching the summary of facts at the beginning of the trial. It is submitted that the summary of facts should have been removed from the court once a defended hearing had been requested, and that the presence of these factors gave rise to an apparent judicial bias.

[86] This argument has no merit. In a trial before a Judge alone it is perfectly in order for briefs to be filed in advance, and it is routine for there to be a summary of facts on the file. It can be assumed that if a Judge does have an opportunity to read the material in advance and considers it appropriate to do so, that Judge will not be influenced adversely one way or another. In most trials the materials before the Judge will tend to give predominantly a Crown perspective to the matters at issue. It is recognised that Judges are well able to put such material to one side and approach any hearing with an entirely open mind.

[87] It was also submitted that the Judge should have formally warned himself in accordance with s 124(3) of the Evidence Act 2006. The warning in s 124(3) is quite specifically stated to apply to a criminal proceeding tried with a jury. Section 124(4) provides:

124 Judicial warnings about lies

...

(4) In a criminal proceeding tried without a jury, the Judge must have regard to the matters set out in paragraphs (a) to (c) of subsection (3) before placing any weight on evidence of a defendant's lie.

[88] Section 124(3) provides:

(3) Despite subsection (2), if, in a criminal proceeding tried with a jury, the Judge is of the opinion that the jury may place undue weight on evidence of a defendant's lie, or if the defendant so requests, the Judge must warn the jury that—

(a) the jury must be satisfied before using the evidence that the defendant did lie; and

(b) people lie for various reasons; and

(c) the jury should not necessarily conclude that, just because the defendant lied, the defendant is guilty of the offence for which the defendant is being tried.

[89] The caution that must be exercised by a Judge in terms of s 124(3) and (4) does not need to be articulated in the decision. This was a summary hearing. While it is open to a Judge to set out formally a self-applied lies direction in a decision, there is no basis for assuming that there has been a failure to do so simply because no such self-applied warning is articulated.

[90] At no stage in the reasoning can the Judge be seen as assuming that because Mr Green had lied about what happened when he stopped the truck, that he was therefore guilty of the offending. The Judge addressed the elements of the offending and considered whether they had been proven. There is nothing to suggest any error in approach.

Sentence

Discharge without conviction

[91] The appellants submit that Mr Green should have been discharged without conviction, assuming a breach of s 5. The District Court Judge declined to do so.

[92] The test under s 107 of the Sentencing Act 2002 is whether the Court is satisfied that the direct and indirect consequences of the conviction would be out of all proportion to the gravity of the offence.

[93] The District Court Judge found in his sentencing decision that the offending was not at the lower end of the scale and that it was a reasonably serious offence. He noted the need to deter others from similar offending. He did not accept that Mr Green would be unable to work or get contracts because of the conviction, or that

_{there was a risk to his business.}13

13 Watercare Services Ltd v Green Environmental Ltd, above n 2, at [24].

[94] Further affidavits have been filed in this Court emphasising the effect of the convictions on Mr Green and his business. However, I have no doubt at all that the Judge was right to reject the s 106 application. The offending was deliberate and flagrant and motivated by profit. If that sort of offending became widespread, the infrastructure designed to deal with waste in Auckland would break down, with the sewers being flooded by unauthorised, unpaid for, septic tank waste.

[95] The exchange between Mr Green and Mr Smith showed an awareness on Mr Green’s part that he was breaking the law. In the circumstances any sentence that did not impose a significant fine would have been less than adequate.

The size of the fines

[96] The appellants suggested that a sentence of over $500 involved a breach of s 25(g) of the New Zealand Bill of Rights Act 1990. This section provides:

25 Minimum standards of criminal procedure

Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:

...

(g) the right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty:

[97] This was not in breach of s 25(g). The maximum penalty for breach of s 5 of the bylaw was $200,000 at the time of the offending in 2009 and through most of the hearing in 2010–2011. At the time of the sentencing in 2012 the same sentence applied but through the new Auckland Local Government legislation. The sentences imposed were not manifestly excessive.

[98] This was serious offending and given the maximum penalty of $200,000 a starting point of $20,000 was well within the range. The same can be said of the sentence imposed under s 77.

Costs

[99] The respondent undoubtedly incurred substantial costs in this matter. The hearing, both in the District Court and this Court, featured consistent breaches of timetable orders by the appellants. They pursued two general defences that had little substantive merit, and some of them had little legal merit. The Judge’s decision was discretionary, and in all the circumstances fair.

Result

[100] The appeal is dismissed.

[101] Costs on this hearing are reserved. The respondent should file submissions within 14 days. The appellants to file submissions in reply within a further 14 days.

...................................

Asher J