Kearns v Wellington City Council

[2012] NZHC 1729

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-000049 [2012] NZHC 1729

BETWEEN  VAUGHAN PATRICK KEARNS Appellant

ANDWELLINGTON CITY COUNCIL Respondent

Hearing:         17 July 2012

Counsel:         Appellant in person

S F Quinn for Respondent

Judgment:      17 July 2012

ORAL JUDGMENT OF COLLINS J

Introduction

[1]      On 27 April 2012 Mr Kearns was found guilty of two infringement offences by Justices of the Peace sitting in the Wellington District Court.

[2]      Mr Kearns was found to have committed the following offences:

(1)Operating a vehicle on a road without displaying a current warrant of fitness, contrary to ss 6(4) and 34(1)(b) of the Land Transport Act

1998.

(2)Operating a vehicle on a road with the licence not affixed in the prescribed manner, contrary to s 242 of the Land Transport Act 1998 and  Regulation  77(2)(b)(ii) of the  Land Transport (Motor Vehicle Registration and Licensing Regulations) 2011.

[3]      The District Court imposed a $100 fine for each infringement and court costs.

KEARNS V WELLINGTON CITY COUNCIL HC WN CRI-2012-485-000049 [17 July 2012]

Background

[4]      In early November 2011 a parking warden was on duty in Lyall Bay.   He went past Mr Kearns’ address at 226 Sutherland Road, Lyall Bay.  He noticed a car (Toyota registration ACZ107) parked on the road in front of the address.  The car did not  have  a  current  warrant  of  fitness.    The  warrant  of  fitness  had  expired  on

27 September 2011.  The warden issued an infringement notice.  The warden also noted that the car did not have a current licence label.   He issued a second infringement notice for this offence.

[5]      The car was registered to Mr Kearns.  Mr Kearns had parked the car on the road because he had been arranging for wood to be delivered to his property and he did not wish to obstruct the delivery of that wood onto his property.

The decision of the Justices of the Peace

[6]      In the District Court Mr Kearns accepted he was responsible for parking his car on the road but argued that the fines should be waived.  He submitted that he was not the type of person who was adverse to paying fines but that his culpability was low and that it was fair for the fines to be waived.  He also argued it was inconsistent with what had  happened previously.   He had  previously received two  fines for exactly the same behaviour and had had those fines waived.  He was concerned that no fines waiver had been provided on this occasion.

[7]      The Justices of the Peace recorded that they were in no doubt Mr Kearns was a person of general good character but that he had clearly committed what were offences of strict liability and that he ought to be fined accordingly.  The Justices of the Peace observed that Mr Kearns had left the car on the road knowing there was a risk of detection.  Whilst the previous two fines had been waived the Justices noted that  Mr Kearns had  also  received  written notice that  future fines  might  not  be waived.

[8]      Mr Kearns appeals on the basis that the convictions and fines were “not in the spirit” of the Land Transport Act 1998 and subsequent amendments and is really a revenue gathering exercise.

[9]      Mr Kearns has also submitted that to operate a vehicle on a road there must be some type of evidence that he was procuring an advantage over other motorists. Mr Kearns argues that he only left the car on the road very briefly so no benefit actually accrued.

Analysis

[10]     Unfortunately for Mr Kearns, his appeal cannot succeed.  He parked a car on a road knowing that the car did not have a current warrant of fitness or a current licence label.   He had previously received infringement notices for this type of behaviour.  The fact that previous fines had been waived was not a factor that could be relied upon to achieve a similar outcome on this occasion.

[11]     In my assessment the Justices of the Peace had no option.   They had to convict Mr Kearns. The fines imposed were appropriate.

[12]     In these circumstances Mr Kearns, the appeal must be dismissed.

D B Collins J

Solicitors:

DLA Phillips Fox, Wellington for Respondent