Friar v Wellington City Council

[2012] NZHC 2130

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-44 [2012] NZHC 2130

MURRAY JOHN FRIAR

Appellant

v

WELLINGTON CITY COUNCIL

Respondent

Hearing:         On the papers

Counsel:         Appellant in person

A M White for Respondent

Judgment:      22 August 2012

I  direct  that  the  delivery  time  of  this  judgment  is  3pm  on  the  22nd   day  of

August 2012.

JUDGMENT OF MACKENZIE J

[1]      There are two applications following my judgment delivered on 5 July 2012 dismissing Mr Friar’s appeal in respect of an infringement notice:

(a)       An application by Mr Friar for leave to appeal to the Court of Appeal;

and

(b)      An application by the Wellington City Council for costs.

FRIAR V WELLINGTON CITY COUNCIL HC WN CRI-2012-485-44 [22 August 2012]

Application for leave to appeal

[2]      I directed a timetable for memoranda in support of and in opposition to the application for leave to appeal, and indicated that I would deal with the matter on the papers following receipt of those submissions.

[3]      Leave to appeal to the Court of Appeal may be granted only on a question of law, where the question of law involved is one which, by reason of its general or public importance, or for any other reason, ought to be submitted to the Court of Appeal.  The essential point in issue on the appeal was whether, at the point where Mr Friar’s  vehicle  was  parked,  parking  was  authorised  by  signs  or  markings maintained by the Council.   That is a question which must be determined on the basis of the particular markings on the road at that point.   The nature of those markings does not raise a question of law of any general or public importance.

[4]      Mr Friar contended, on the appeal, that the allowing of a previous appeal by him, in relation to parking at that point, was relevant in two ways:

(a)       As indicating that the parking was authorised by the road markings;

and

(b)      As going to the appellant’s intent.

[5]      I do not consider that either of these matters raises a question of law of a type such as could justify the granting of leave.  On the first point the earlier appeal was allowed by consent.  The reasons for that are not before me.  The fact that the appeal was allowed by consent means that there has been no judicial determination as to the status of the road markings.  On the second point, Mr Friar submits that he lacked mens rea, because the allowing of the earlier appeal led him to believe that his actions were lawful.  That does not give rise to a question of law.  The offence in r 6.3(2) is a strict liability offence, and does not require proof of intent on the part of the person concerned.

[6]      For  these  reasons,  I  consider  that  the  proposed  appeal  does  not  raise  a question of law of sufficient general or public importance, or one which for any other reason, should be submitted to the Court of Appeal for decision.

[7]      Leave to appeal is accordingly declined.

Application for Costs

[8] The Council seeks costs of $226 on the appeal under the Costs in Criminal Cases Act 1967. Under s 8 of the Act, costs are at the discretion of the Court. While an award of costs is discretionary, there must be good grounds for making it.[1]

[1] R v Leitch CA195/97, 22 December 1997;   R v Rust [1998] 3 NZLR 159 (CA) at 162–163; Jones  v  Civil Aviation Authority  [2009] NZCA 311; Wallace Corporation Ltd  v  Waikato Regional Council [2011] NZCA 350.

[9]      In the circumstances, I do not consider that an award of costs is appropriate in this case.  Mr Friar exercised the right of appeal available to him.  While I did not allow the appeal, it could not be described as frivolous or vexatious, under s 8(5). The exercise of an appeal right should not ordinarily lead to an adverse costs award.

[10]     There will be no order as to costs.

Solicitors:           DLA Phillips Fox, Wellington for Respondent.

Copy to:            Mr Friar, 6 Plunket Street, Kelburn, Wellington 6012.

“A D MacKenzie J”