Howell v Auckland Transport [2013] NZHC 2060 (14 August 2013)

Last Updated: 21 August 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000192 [2013] NZHC 2060

BETWEEN	KENNETH PHILLIP HOWELL Appellant
AND	AUCKLAND TRANSPORT Respondent

Hearing:	30 July 2013
Appearances:	Appellant in person DM Hughes and JVR James for Respondent
Judgment:	14 August 2013

_{JUDGMENT OF WOOLFORD J}

This judgment was delivered by me on Wednesday, 14 August 2013 at 11.30 am pursuant to r 11.5 of the High Court Rules.

_{Registrar/Deputy Registrar}

HOWELL v AUCKLAND TRANSPORT [2013] NZHC 2060 [14 August 2013]

Introduction

[1] Kenneth Phillip Howell is an owner/driver of a Corporate Cab. On

4 February 2013, he was parked in a taxi rank at the Heritage Hotel in Hobson Street. At 6.15 pm he was despatched to pick up a customer at 6.25 pm from the National Bank building, 205 Queen Street, Auckland. The customer had requested to be picked up from the back entrance of the building in Elliott Street. Mr Howell arrived in Elliott Street at approximately 6.22 pm. He stopped in Elliott Street between Darby Street and Victoria Street outside the back entrance to the National Bank building. From photographs taken at the time, it appears that Mr Howell stopped in a shared space zone without any kerbing in which pedestrians have the right of way, although they must be aware of and have consideration for vehicles using the space.

[2] At 6.25 pm Mr Howell telephoned his customer, who was on his way down in the building’s lift. The customer and another passenger got into Mr Howell’s taxi at approximately 6.28 pm. At that time Mr Howell noticed a parking officer writing out an infringement notice. He waited so he could give it to him. According to Mr Howell, when the parking officer gave him the infringement notice, he said “I notice you are picking up passengers. You’ll get off this ticket anyway”, to which Mr Howell asked “Why give me one then”? The parking officer apparently responded “I’m only doing my job”. Mr Howell then turned on his meter and left to take his passengers to their destination. The times are accurate because of the log kept by the taxi company.

[3] The infringement notice alleged that on 4 February 2013, at Elliott Street, Auckland Central, Mr Howell, being the person in charge of a motor vehicle, stopped, stood or parked a vehicle on a part of the road contrary to the terms of a traffic sign, notice or road parking being an offence against s 40 of the Land Transport Act 1998, r 4 of the Land Transport (Offences and Penalties) Regulations

1999 and r 6.4(1) of the Land Transport (Road User) Rule 2004. Mr Howell disputed liability by notice in writing and requested a hearing in respect of the alleged offence.

[4] A hearing then took place in the Auckland District Court on 12 June 2013, before Justices of the Peace. Auckland Transport was represented by counsel. Mr Howell appeared in person.

[5] After hearing from the parking officer and Mr Howell, the Justices of the Peace found the charge proven and ordered Mr Howell to pay a fine of $40.00 with Court Costs of $132.89. He now appeals against the finding that the charge was proven.

Discussion

[6] Having heard from Mr Howell in person and from counsel for Auckland Transport, I am of the view that the appeal should be allowed. The hearing in the District Court was unsatisfactory in a number of respects. In particular, it seems that the Justices of the Peace did not get all the assistance they required from Auckland Transport.

[7] Firstly, the parking officer who issued the infringement notice and gave evidence at the hearing before the Justices of Peace produced in evidence what he said:

_{looks like the [Auckland City] resolution for that particular area on Elliott}

Street, the shared zone .... signed off on 15 July 2011.1

[8] The particular area on Elliott Street where Mr Howell had stopped briefly to pick up a passenger was not, in fact, covered by the resolution. Mr Howell had stopped on Elliott Street between Darby Street and Victoria Street. The resolution produced by the parking officer covered Elliott Street but only between Wellesley Street and Darby Street. It did not cover the entirety of Elliott Street.

[9] Secondly, there was some confusion about the nature of the sign which is said to have imposed traffic restrictions on that part of Elliott Street, between Darby Street and Victoria Street. At page 2 of the notes of evidence, the parking officer

referred to both “no parking” and “no stopping”. The parking officer then described the sign on page 3 as follows:2

Shared zone P5 Goods Service Vehicle Loading Zone between 6 am and 11 am No Parking at all other times, and it had a big “no parking” circle with – a red circle with a cross.

[10] The parking officer seems to have been describing a “no stopping” sign which has a red circular border with a red diagonal cross against a blue background. From the photographs submitted by Mr Howell on the appeal, it seems, however, that the sign is a “no parking” sign which has red circular border with a red diagonal bar against a black P.

[11] In any event, the Justices of Peace appear to have wrongly concluded that it was a “no stopping” sign. They also were of the opinion that there was a significant difference between a “no stopping” and a “no parking” sign. They stated:

[5] The sign we have received evidence states, “No Stopping” as distinct from “No Parking”. That is the evidence that has been given in Court today. Had it been a no parking sign, we would be taking a different view of it but the evidence we have received in Court is that it was a no stopping sign. That was evidence given by the parking officer at the time he was on the stand.

[12] Thirdly, counsel for Auckland Transport did not provide the Justices of Peace with an up-to-date version of the Land Transport Rule: Traffic Control Devices 2004 incorporating, in particular, amendments which came into force on 1 April 2011. When giving evidence, Mr Howell stated that the law allowed him to pick up passengers in a “no parking” zone and provided the Court with a copy of an extract from the Land Transport Rule: Traffic Control Devices 2004 which did not incorporate the amendments which came into force on 1 April 2011. The extract stated as follows:

No Parking

R6 –70 No Parking

A driver may not park and may only stop for the purposes of loading or

unloading passengers or goods.

...

R6-70.1 No parking symbol

A symbol of this size never appears on a sign by itself. A driver may not

stop, stand or park unless the vehicle is one of the class or classes or vehicles specified on the sign and then may only stop for the purposes of loading or unloading passengers or goods.

...

[13] Mr Howell also made reference to Part 13 Parking Control of the Traffic Control Devices manual issued by Land Transport New Zealand in December 2007, which contains the following definitions:

No stopping: A requirement that a vehicle may not be stopped or allowed to remain stationary, except when necessary to avoid conflict with other traffic or to comply with the directions of a member of the police force or a traffic control sign or signal.

No parking: A requirement similar to ‘no stopping’, except that stops for short periods are permitted for the purpose of taking up or setting down passengers or goods.

[14] The following interchange then took place in the hearing before the Justices of Peace between counsel for Auckland Transport and Mr Howell when counsel was cross examining Mr Howell:3

Q. And what is the legislation, which Act is this under? A. Parking Control Act, Land Transport.

Q. It’s not the Land Transport Act, correct?

A. This the Land Transport Parking Control Act.

Q. What is the Land Transport Parking Control Act?

1. All about how the rules and regulations for parking, placing of signs et cetera. That was their definition of no parking.
   

Q. Do you understand what the definition of parking is in the Land

Transport Act?

A. Um, yes but I’m not arguing with that one, I’m just telling you that’s

that one.

Q. I’m asking you do you know it, yes or no.

A. Yes.

Q. Is that contrary to that one?

A. Yes.

Q. What does the Land Transport Act one say?

1. I don’t know, I can’t remember what it says but it does – you are allowed to pick up and set down passengers in a no parking zone.
   

Q. According to the Land Transport Act? A. Yes.

Q. Are you sure?

A. Says it in the Parking Control Act. Q. I said the Land Transport Act.

A. I think we’re talking – I’m talking about this one where you’re

talking about something totally different.

Q. Correct, you gave your evidence in regards to the Parking Control

Act?

A. I’m not quite sure what the other Land Transport Act says.

Q. Is it in contrary to that one?

A. It probably is, but I think they’re both written by the same people.

[15] This interchange did not assist the Justices of the Peace.

[16] There is no suggestion at all that Mr Howell was attempting to mislead the Court (he is obviously a man of integrity) but it illustrates the difficulties that litigants in person sometimes have in accessing up-to-date legislation. Counsel for Auckland Transport should have been in a position to assist the Justices of Peace by providing them with the relevant Rule.

[17] The relevant section of the Land Transport Rule: Traffic Control Devices

2004 now reads:

R6-1B No Parking

Drivers may not stop, stand or park at all times (ie 24 hours, 7 days a week) unless a lesser time is indicated in Component 3 except for drivers of the class or classes of vehicles indicated on the sign in Component 2 who may not stop stand or park other than for the purpose of loading passengers or goods and providing the driver remains in attendance of the vehicle.

[18] Component 3 sets out information detailing the time for which a parking restriction applies where this differs from the standard period of operation. Component 2 sets out information relating to the type of vehicle or type of parking affected by a parking sign.

[19] R6-1B does not require a sign to contain Component 2 or 3. As set out above, the rule expressly states that Component 3 is only included in a sign where a time for which a parking restriction applies differs from the standard period of operation. R6-1B clearly states that “drivers may not stop stand or park at all times (ie 24 hours, 7 days a week)”. The relevant traffic sign sets out that the part of Elliott Street where Mr Howell has stopped was a “Loading Zone” for a maximum of five minutes between 6.00 am – 11.00 am Monday to Sunday. Accordingly, at other times outside of this time drivers cannot stop, stand or park, no matter what the reason.

[20] The Traffic Control Devices manual issued by Land Transport New Zealand in December 2007 and relied upon by Mr Howell is now also obviously out of date.

Conclusion

[21] Counsel for Auckland Transport submitted that, notwithstanding that the Justices of the Peace had erroneously concluded that the traffic sign governing that part of Elliott Street where Mr Howell had stopped was a “no stopping” sign, rules which came into force in 2011 do not allow a taxi driver to stop in a “no parking” zone to pick up passengers. Mr Howell’s appeal should accordingly be dismissed.

[22] However, in light of the various deficiencies in the way in which the case was presented, I am of the view that the decision of the Justices of Peace must be quashed. Mr Howell had the right to have the case against him set out clearly and accurately so that he could effectively respond to it. As to whether Auckland Transport should be given the opportunity to present its case again in the District Court, I am of the view that it is not in the interests of justice to remit the case back to the District Court for re-hearing. The Justices of the Peace themselves stated:

[6] Technically, we find that the charge of stopping in a no stopping area is proven against you. We are rather less than impressed from a practical point of view that that ticket was issued within one minute of you stopping and we think that was extremely zealous and conscientious in one respect by the parking officer but it certainly perhaps could have been handled better by the parking officer, and that is an observation when dealing with members of the public and in this case a taxi driver waiting for passengers who arrived quite promptly.

[23] The decision of the Justices of the Peace finding that the charge had been proven against Mr Howell is accordingly quashed as is the fine and Court costs, which were imposed against him. In light of the various deficiencies identified in the way in which the case was presented, I award scale costs of $226 to Mr Howell, which are payable by Auckland Transport.

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

Woolford J