Jones v Wellington City Council [2016] NZHC 2310 (28 September 2016)

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UNDER THE	Land Transport Act 1998, Summary Proceedings Act 1957 and the Criminal Procedure Act 2011
IN THE MATTER OF	an appeal under section 229 of the Criminal Procedure Act 2011
BETWEEN	ANDREW JONES LOUISE FERGUSON SEFTON GIBB LUKE DOMB Appellants
AND	WELLINGTON CITY COUNCIL Respondent

Hearing:	27 September 2016
Counsel:	A OʼConnor for Appellants S F Quinn for Respondent
_Judgment:	_{28 September 2016}

[1] On 11 March 2016 the four appellants were convicted of operating a vehicle on a road while the vehicle was not licensed following a defended hearing before His Honour Judge Walker.¹There was no issue as to the facts giving rise to their convictions. The relevant vehicles were unlicensed. They were operated on a road. Each appellant was fined $200.

[2] The appellants’ defence in the District Court was that the infringement notices, which were attached to the windows of the respective vehicles (which were parked at that time) were in the wrong form. They now appeal against Judge Walker’s rejection of that contention.

[4] Section 242 of the Land Transport Act 1998 (the Act) provides that a motor vehicle must not be operated on a road unless it is registered and licensed and displays a current licence.

[5] Regulation 77 of the Land Transport (Motor Vehicle Registration and Licensing) Regulations 2011 (the VLR) creates the offence of driving, using or operating a vehicle on a road that is not registered and licensed or does not have a current licence displayed in the following terms:

(2) A person commits a stationary vehicle offence if the person operates a motor vehicle in contravention of section 242(1) of the Act by causing or permitting it to be on a road or driven on a road if the motor vehicle—

(b) does not have affixed to it and displayed in the manner prescribed by these regulations—

[6] Stationary vehicle offences are a particular kind of infringement offence. They are defined in s 2 of the Act as including: “Any offence specified as a stationary vehicle offence in regulations made under this Act”. An offence against reg 77 is so specified.

(1) If an enforcement officer has reasonable cause to believe an infringement offence is being or has been committed by a person, an infringement notice in respect of that offence may be issued to that person by an enforcement officer.

(a) By attaching it, or a copy of it, to the vehicle to which the notice relates; or

(b) By delivering it, or a copy of it, personally to the person who appears to have committed the infringement offence; or

(c) By sending it, or a copy of it, by post addressed to him or her at his or her last known place of residence or business or postal address; or

(d) If the person is a holder of a land transport document, by serving it, or a copy of it, by post on that person at his or her last address for service provided for the purposes of that document.

(a) is attached to a vehicle under subsection (2)(a) must be treated as having been served when it is attached to the vehicle:

(b) is sent to a person by post under subsection (2)(c) or (d) must be treated as having been served on the person when it would have been delivered in the ordinary course of post.

[8] The issue as to the correct form of an infringement notice for an offence under reg 77 arises because reg 95 of the VLR provides:

For the purposes of section 139 of the Act, an infringement notice for an infringement offence against a provision of these regulations and a reminder notice in respect of an infringement notice must be in the form prescribed in Schedule 1 of the Land Transport (Infringement and Reminder Notices) Regulations 1998.

[9] At the time the VLR were promulgated, however, the Land Transport (Infringement and Reminder Notices) Regulations 1998 (the 1998 regulations) contained a specific, contrary, provision. Regulation 5 of the 1998 regulations provided that: “An infringement notice for a stationary vehicle offence must be in the form set out in Schedule 4”.

[10] The form of infringement notice prescribed in sch 4 is more apt for a stationary vehicle offence than the form of notice prescribed in sch 1.²

[11] The matter became slightly more complicated in 2012, when the 1998 regulations were replaced by the Land Transport (Infringement and Reminder Notices) Regulations 2012 (the 2012 regulations). For present purposes the 2012 regulations are in materially identical terms to the 1998 regulations. More particularly, reg 7 of the 2012 regulations is in identical terms to reg 5 of the 1998 regulations.

[12] And reg 3 says that the form in sch 1 must be used for offences other than

[13] The prescribed forms contained in the new (2012) first and fourth schedules are materially identical to the prescribed forms contained in the first and fourth

²In the course of the judgment under appeal Judge Walker commented that, in practical terms, the sch 4 notice was the appropriate one for stationary vehicle offences. This was because the sch 1 notice is directed at the user of a motor vehicle and requires completion of various details about that person. The parking warden, coming across a parked vehicle, would not know who the user was, or have their details. By contrast the sch 4 notice is directed at the user or operator and does not require these details.

[14] When the 2012 regulations were promulgated there was no consequential amendment to reg 95 of the VLR. So reg 95 still refers to sch 1 of the 1998 regulations.

[15] The infringement notices issued to the appellants alleged a stationary vehicle offence (operating an unlicensed motor vehicle) and were directed at “the user or person entitled to possession of the vehicle”. They were in the form prescribed in sch 4 of the 2012 regulations as required by reg 7 of those regulations.

[16] The appellants’ case was that the notices were in the wrong form because reg 95 of the VLR required that the form specified in sch 1 of the 2012 regulations be used. They said that the use of the wrong form invalidated the infringement notices and, therefore, that they could not be liable.

I consider that the inconsistency can be resolved by viewing the Land Transport (Infringement and Reminder Notices) Regulations as modifying or adding to Regulation 95. Whether this is described as implied repeal pro tanto or the application of the principle generalia specialibus non derogant (general provisions do not derogate from the specific ones), the application of the underlying principle would have the same effect.

There is a general maxim of interpretation requiring general statutory provisions to yield to specific ones.

The VLR deal with the requirements of vehicle licensing and registration, the procedures relating to those actions, and the offences of non-compliance. The Land Transport (Infringement and Reminder Notices) Regulations 2012 are concerned with detailing the procedure for issuing and service of infringement and reminder notices in transport matters. So the VLR can be seen as dealing with substantive matters of registration and licensing and the other regulations relate to enforcement and procedure.

In that way, the Land Transport (Infringement and Reminder Notices) Regulations can be seen as specifically dealing with infringement procedures.

Regulation 95 fails to make provision for the issue of an infringement notice in respect of a stationary vehicle offence which could never be the subject of an infringement notice under Schedule 1. It fails to deal with the different forms of infringement notice. However, the distinctions between the various types of infringement offence are dealt with in the Land Transport (Infringement and Reminder Notices) Regulations.

If the more specific regulations could not modify Regulation 95, then an infringement notice could not be issued for a stationary vehicle offence in relation to using or permitting an unlicensed vehicle to be used. The infringement and reminder notice Regulations preclude the use of the notice prescribed in Regulation 95.

Regulation 77 of the VLR, in creating the offence, specifically provides for the commission of a stationary vehicle offence but Regulation 95, without modification by the more specific regulations, would preclude an infringement notice being issued for one of the very types of offences created by Regulation 77. That would lead to an absurdity.

In my view Regulation 95 of the VLR must be read as subject to or modified by the Land Transport (Infringement and Reminder Notices) Regulations

2012 in relation to stationary vehicle offences and an infringement notice for that offence under Regulation 77 must be in accordance with Schedule 4 of the 2012 Regulations.

It follows from my conclusion that the infringement notices issued to each of the defendants were in the correct form.

There is no argument that the procedure based on the infringement notices, if valid, have been correctly followed and the matter is properly before the Court. The constituent elements of the offence alleged are admitted by each of the defendants and each of the alleged infringements must be regarded as proved.

(ii) the form at Schedule 1 should have been used as it was capable of being used; and

(iii) as the form could have been used, there was no drafting error to remedy; and

(iv) resorting to the application of implied repeal is always a last resort and is not justified nor necessary here; and

(v) being a penal provision, the common law presumption called for a strict interpretation in favour of the appellants; and

(vi) while the Interpretation Act does not deal with the question of incompatibility between provisions of enactments, it does not suggest either that later enactments are to prevail over earlier provisions or that specific provisions prevail over general ones.

[19] Mr O’Connor also submitted that if the Judge is correct, then all notices issued between 1 May 2011 and 5 June 2012, which (he says) were issued under sch 4 must be invalid because if (as the Judge is alleged to have held) the 2012 regulations impliedly repealed the VLR then the VLR also impliedly repealed the

[20] In my view the appellants misunderstand the Judge’s decision. The concept of implied repeal to which he referred is explained by the learned authors of Burrows and Carter: Statute Law in New Zealand, who say that the principle of generalia specialibus is usually only applied where the more general enactment comes later than the specific one. If the specific one comes later, then:⁴

... the special provision of course normally prevails too, although for some reason this is not usually described as generalia specialibus; it is more commonly described as “implied repeal pro tanto”. However, the practical effect is usually the same whether the special provision is later or earlier: it creates an exception to the general one, and even if the order of the two provisions is later reversed by one of them being consolidated it will normally make no difference.

[21] So the short point is that the Judge did not hold that the 2012 regulations impliedly repealed the VLR and nor can it be inferred that the VLR regulations impliedly repealed the 1998 regulations.

[22] The slightly longer point is that the Judge was, in my view, entirely correct to hold (essentially) that, where stationary vehicle offences are concerned, the more specific reg 7 of the 2012 regulations prevailed over the more general reg 95 of the

VLR. There is a clear and irreconcilable difference between the two provisions.⁵

Both use the word “must”. The inconsistency can therefore only be resolved by reference to the orthodox principles of statutory interpretation. The Interpretation Act 1999 is not a code; all the common law interpretive principles continue to apply unless they have been modified or excluded by statute.

[23] In my view it is clear beyond doubt that reg 7 should prevail. It is the more specific. The sch 1 form is much less apt than the sch 4 form for stationary vehicle offences. The appellants have pointed to no principle of statutory interpretation that assists their position; to the extent that the “penal presumption” still applies it does not resolve the inconsistency. The simple point is that both regulations are clear on their face but both cannot be applied. There has been no prejudice whatsoever to the appellants from the inconsistency.

[24] Although other matters were raised by Mr Quinn in support of the Judge’s decision, there is no need to address them here. The appeals are dismissed for the reasons I have given.

High Court of New Zealand Decisions

Jones v Wellington City Council [2016] NZHC 2310 (28 September 2016)