Sayes v Auckland Transport [2012] NZHC 3436 (14 December 2012)

Last Updated: 9 January 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-280 [2012] NZHC 3436

BETWEEN MICHAEL WENTWORTH SAYES Appellant

AND AUCKLAND TRANSPORT Respondent

Hearing: 14 December 2012

Counsel: No appearance by or on behalf of Appellant

VM Clements for Respondent

Judgment: 14 December 2012

_{JUDGMENT OF BREWER J}

SOLICITORS

Simpson Grierson (Auckland) for Respondent

_{(Copy to Appellant in person)}

SAYES V AUCKLAND TRANSPORT HC AK CRI-2012-404-280 [14 December 2012]

[1] Mr Sayes has lodged a notice of appeal in respect of a finding by Justices of the Peace in the District Court at Auckland on 26 March 2012 that he operated a motor vehicle in contravention of s 242(1) of the Land Transport Act 1998. It is unclear from the notice of appeal whether Mr Sayes seeks to appeal against his conviction or his sentence or both. I suspect Mr Sayes wishes to appeal against his sentence since there is no dispute that he was operating an unlicensed motor vehicle and that accordingly the infringement notice was properly issued.

[2] Mr Sayes needs leave of the Court before he can advance his appeal. That is because he did not file the notice of appeal until 23 August 2012, which is of course well outside the 28 days period allowed for an appeal as of right. The issue for me this morning is whether Mr Sayes should be granted leave to bring his appeal.

[3] This is the third call of this matter in this Court. The first call was on

28 September 2012. At that time, Mr Sayes appeared. Woolford J set the appeal down for hearing at 2:15 pm on Monday, 10 December 2012 (for administrative reasons, this date was subsequently changed to Tuesday, 11 December 2012). His Honour directed that Mr Sayes’ application for leave to appeal out of time would need to be dealt with before any argument as to the merits of the appeal. His Honour directed a timetable for the filing of submissions, which as I understand it was substantially complied with by Mr Sayes.

[4] There was no appearance by Mr Sayes on 11 December 2012. Chisholm J, who was due to preside, was handed an email from Mr Sayes. It said he was unable to drive because he was not feeling well. Mr Sayes sought an adjournment. Chisholm J granted the application reluctantly, advising Mr Sayes in his Minute that there would be no further adjournment:

In other words, if he is unable to make the next court day the appeal will be dismissed.

[5] The appeal was rescheduled to today’s date.

[6] Mr Sayes is not here this morning. He has, however, sent an email timed at

8:16 am. The email advises the registry that Mr Sayes again finds himself unable to drive. With the email is a letter from a doctor dated 19 October 2012 which says:

Mr Sayes reports episodes of mild headache, dizziness and loss of concentration over the last winter lasting one or occasionally two days.

[7] Mr Sayes goes on in this way:

Would you please present this email to the Judge my request for a new hearing date 18th Feb 2013 or thereafter as I am planning to be out of Auckland with visitors from overseas on 4th Feb 2013.

I wonder what I will be able to do if unable to drive on the next date and perhaps consideration could be given for that possibility.

I have been notified by Simpson Grierson that they intend to oppose any new date so have not copied this email to them.

[8] One of the reasons why the law sets a time limit on the filing of appeals as of right is to promote efficiencies in the Court process. Allied to that is the need to prevent unmeritorious appeals coming before the Court. Judges will not deny leave to appeal out of time to an appellant who has a good reason for the delay and where there is apparent merit to the appeal. In this case, the reason for the delay can be attributed to Mr Sayes being self-represented. However, it is clear that there is no merit to the appeal.

[9] In the written materials filed by Mr Sayes, he claims that his vehicle was continuously licensed and that he never asked for the licence to be suspended or for the vehicle to be exempt from licensing. He argues that under the current licensing structure, all registered vehicles are automatically relicensed and amounts due and unpaid simply remain payable to Land Transport New Zealand. Mr Sayes accepts that non-payment of outstanding licence fees can trigger debt collection procedures, but he contends that vehicles only become unlicensed by an exemption from licensing or cancelling registration. So, Mr Sayes would advance the submission that when he belatedly paid the registration fee that should have been the end of the matter.

[10] There is, however, no doubt that a vehicle is required to be licensed annually and that it is an offence to drive a motor vehicle on the roads when it is not licensed.

[11] In the recent decision of Peters v Auckland Transport,[1] Katz J held that paying outstanding licence fees does not excuse a person from paying a fine. I entirely agree.

[12] On this basis, I deny Mr Sayes leave to appeal. This has the effect of the appeal being dismissed.

Costs

[13] In my view the respondent is entitled to costs under the Costs in Criminal Appeals Act 1967. I say this because the appeal was brought out of time, it clearly had no merit, and the respondent has been put to additional cost and trouble by the failure of Mr Sayes to appear.

[14] The amounts are relatively nominal and in this case I make an order for costs in favour of the respondent in the sum of $130.

_{Brewer J}

---

[1] Peters v Auckland Transport HC Auckland CRI-2012-404-167, 6 September 2012.