EASTON v WELLINGTON CITY COUNCIL [2020] NZHC 3351

EASTON v WELLINGTON CITY COUNCIL [2020] NZHC 3351 [16 December 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2020-485-64[2020] NZHC 3351BETWEEN BENJAMIN MORLAND EASTONAppellantAND WELLINGTON CITY COUNCILRespondentHearing: 10 December 2020Counsel: Appellant in personE L Higbee for RespondentJudgment: 16 December 2020JUDGMENT OF ELLIS J[1] Mr Easton seeks to appeal a decision of Judge Large in the District Court atWellington convicting him of two road transport infringement offences and fining him$640 (together with an order that he pay court costs of $300).1 The two charges were:(a) on 7 May 2019, being in charge of a vehicle (CRC991) parked on aroad on a flush median or traffic island (Rongotai Road, inWellington); and(b) on 19 June 2019, being in charge of a vehicle (JFD8) parked on a road(Hanson Street, in Wellington), that was not displaying a currentcertificate of fitness.[2] Because his appeal was filed a little out of time, leave is required. Leave wasnot opposed by the respondent Council and is granted accordingly.1 Wellington City Council v Easton [2020] NZDC 12300.[3] I observe at the outset that there were a number of ancillary and backgroundmatters that Mr Easton also wished to canvass at the hearing before me. But hisappeal—and this judgment—must be focused squarely on whether there was someerror or irregularity in the trial or in the Judge's decision that either (1) gives rise to areal risk that the outcome was affected or (2) resulted in a trial that was unfair.2[4] I specifically record that—for the simple reason that they are not the subject ofJudge Large's decision—I am unable to deal on appeal with:(a) anything arising from or related to Judge Morris' minute dated 7 August2018, including Doogue J's judgment of 7 November 2019 in whichshe struck out judicial review proceedings relating to that minute,brought by Mr Easton;3 or(b) anything arising from or related to Mr Easton's appearance before twoJustices of the Peace on 28 February 2020; or(c) two other infringement notices issued to Mr Timothy Spellacey.4Transcript of District Court hearing and request for adjournment[5] The District Court has refused Mr Easton's request that the hearing beforeJudge Large be transcribed and a copy of the transcription be provided to him. Thatrefusal does not (and cannot) form part of this appeal.[6] Mr Easton said that in the absence of a transcript, justice required that thehearing of his appeal be adjourned. I was not persuaded that that was warranted, forthe reasons that follow.[7] As I understand it, what Mr Easton says the transcript will show is that he was"shut down" by the Judge and not permitted to advance the arguments he wished toadvance. But there are two answers to this. First, the decision under appeal suggests2 Criminal Procedure Act 2011, s 232.3 Easton v Attorney-General [2019] NZHC 2910.4 Which as I understand it were for hearing in the District Court on 1 December 2020.that Mr Easton was only "shut down" when he interrupted the Judge while he wasattempting to deliver an oral judgment (after a relatively lengthy hearing). Secondly,there is the curative effect of the appeal itself. If there were relevant matters Mr Eastonwished to advance that were not dealt with by the District Court, he has now beengiven the opportunity to do so.Relevant statutory provisionsCertificate of fitness[8] Section 34 of the Land Transport Act 1998 (LTA) relevantly provides:(1) A person commits an offence if the person—(b) operates a vehicle on a road without displaying currentevidence of vehicle inspection or a certificate of loading orboth (as may be required by the regulations or the rules);[9] The word "operate" is defined in s 2:operate, in relation to a vehicle, means to drive or use the vehicle on a road,or to cause or permit the vehicle to be on a road or to be driven on a road,whether or not the person is present with the vehicle; Traffic island[10] Section 40 of the LTA provides:40 Contravention of ordinary rules(1) A person commits an offence if the person contravenes a provision ofan ordinary rule and the contravention of that provision is for the timebeing prescribed as an offence by regulations made under section 167.[11] Here, the relevant rules are contained in the Land Transport (Road User) Rule2004 (the LTRUR).[12] Rule 6.7 provides:A driver or person in charge of a vehicle must not stop, stand, or park thevehicle on a traffic island or flush median.[13] Rule 1.6 defines "traffic island" as:a defined area within a roadway, which may be flush with the roadway orraised, and from which vehicular traffic is intended to be excluded[14] Certain defences are available under rule 1.8(1), but none are relevant.The appeal[15] It is not disputed that the vehicle JFD8 was not displaying a current certificateof fitness at the time it was ticketed. The appeal in relation to that conviction istherefore based only on the general matters discussed shortly.[16] As regards the other infringement, a question was raised about whether theplace where the vehicle CRC991 was parked did in fact constitute a "traffic island".The car was parked on a large grassed area in the middle of Rongotai Road. It is levelwith the road and is bounded by broken lines painted on the road itself. It also hastrees growing on it.[17] In my view, the grassed area does fall within the statutory definition, in thesense that it is a defined area that is:(a) within a roadway;(b) flush with the roadway; and(c) from which vehicular traffic is intended to be excluded.[18] So again, the success or failure of Mr Easton's appeal in relation to the trafficisland conviction also turns solely on his overarching grounds of appeal—namely that:(a) the Court had no jurisdiction in the matter and/or the LTA and LTRURhave no application, because of the Declaration of Independence of1835 (He Wakaputanga o te Rangatiratanga o Nu Tireni); and(b) because the respondent Council itself has, by various acts or omissions,breached the law it cannot now seek to enforce the law againstMr Easton.[19] As to the first matter, it is (as I understand it) primarily the Declaration ofIndependence that Mr Easton says he has, thus far, been prevented from speakingabout. He says it requires and deserves lengthy and in-depth consideration andanalysis.[20] The most authoritative judicial consideration of the place of the Declaration ofIndependence in our constitutional framework can, I think, be found in the Court ofAppeal's decision in Ngaronoa v Attorney-General (the prisoners' voting rights case).5[21] The Court began by explaining that although there were many pleadedassertions concerning the fact and significance of the Declaration, there was nocontention that the 1993 Act must be interpreted in accordance with the principles ofthe Declaration. Rather, the relief sought in respect of the first cause of action includeda declaration that the 2010 Act breached the Declaration and/or was inconsistent withits principles. The Court noted that counsel for some of the appellants had emphasisedin the High Court that the case constituted the first occasion that the Court had beenpresented with the opportunity to elucidate the legal status of the Declaration. Thathad been interpreted by the High Court Judge as an invitation to give recognition tothe Declaration, which he declined to do, saying that the "legitimacy narrative" ofNew Zealand's democracy ignores the Declaration and starts with the Treaty ofWaitangi signed five years later. The Judge noted that it was irrelevant whether thatis a good thing or a bad thing—it is "a constitutional fact".[22] The Court recorded that, on appeal, it was argued that the Ngāpuhi iwiproclaimed sovereignty over the northern region of the North Island and did not cedesovereignty to the Queen of England under the Treaty. It was said that the right of theNgāpuhi iwi to self-determination and political representation is enshrined in the5 Ngaronoa v Attorney-General [2017] NZCA 351, [2017] 3 NZLR 643. It seems clear that theargument was not advanced in the Supreme Court: Ngaronoa v Attorney-General [2018] NZSC123, [2019] 1 NZLR 289.Declaration, and that the right of all members of Ngāpuhi to vote in Te Tai Tokerauelectorate must therefore be implied in the Electoral Act 1993.[23] In rejecting that argument, the Court of Appeal said:[57] The genesis of the Declaration is described in detail in the 2014Waitangi Tribunal Report He Whakaputanga me te Tiriti: The Declaration andthe Treaty. The Declaration, signed on 28 October 1835 by 34 leading Te Rakirangatira, was a declaration by those rangatira of sovereignty andindependence. It was a pragmatic response to a perceived foreign threat totheir authority from the Anglo-French adventurer Baron Charles de Thierry,who advised he was coming to New Zealand to establish himself as sovereignchief.[58] The Declaration did not herald a radical change in politicalorganisation among those hapū whose rangatira signed it. Ultimate authorityremained with the hapū. As the Waitangi Tribunal stated:It is important to be clear that authority remained with hapū afterhe Whakaputanga as before. On that basis, we do not believe that anycollective or confederate northern Māori sovereignty existed in 1835,or before. Nor do we believe that a single state existed in the Bay ofIslands and Hokianga area or neighbouring districts prior to 1835, andnor was one created by he Whakaputanga. Indeed, had rangatiraintended to make such a significant step as declaring their nationhoodon a collective or confederate basis, we think they would have foundtheir own occasion rather than waiting until a letter from Tahitiprompted the British Resident to action.[59] The Tribunal recognised that there had been a tendency to neglect theDeclaration in scholarly debate, observing that published interpretations of theDeclaration were generally based on the English-language texts, weremistakenly viewed through a retrospective lens and were largely dismissive.Noteworthy, however, was the striking absence of any explicit mention of theDeclaration, at least in European observers' accounts, at the Waitangi hui on5 February 1840 before the Treaty was signed.[60] We acknowledge the perspective that the Declaration may be viewedas the parent document to the Treaty, and that given the repetition in the Treatyof terms in the Declaration such as rangatiratanga and kāwanatanga theDeclaration was not superseded by it. However we do not consider, given thecontext in which the Declaration was signed and the content of the Treatywhich followed five years later, that the Declaration should be accordeddiscrete status as an extrinsic aid to the interpretation of contemporary statutes.In our view, Fogarty J's conclusion that, rightly or wrongly, the Treaty is thestarting point for the legitimacy narrative of New Zealand's constitutionalarrangement was sound. We do not consider that there was any error of thenature alleged.[24] It may well be that this is not the last word on the matter. In that regard I notethat the second part of the Waitangi Tribunal's Wai 1040 Report (He Whakaputanga mete Tiriti: The Declaration and the Treaty) has yet to be released; possibly there areconstitutional conversations—perhaps of the kind envisioned by Mr Easton—yet tobe had. But for now, the courts are not the place for that conversation and the Courtof Appeal's decision is the word that is binding on me. So, in short, the District Courtwas right to hold that he Whakaputanga does not affect the jurisdiction of the courtsof New Zealand and does not alter the applicability of statutes passed by theNew Zealand parliament to all who live in New Zealand, including Mr Easton.[25] The District Court Judge was also right about the second matter referred to at[18] above. Whether or not Mr Easton has committed the infringement offences thatare the subject of this appeal does not in any way depend on whether the WellingtonCity Council itself has complied with (or failed to enforce) the law in:(a) opening up Manners Mall to buses;(b) painting the rainbow crossing on Cuba street;(c) approving the development of Shelly Bay;(d) parking its own vehicles on traffic islands;(e) not ticketing other vehicles that are parked on the traffic island onwhich Mr Easton's car was ticketed;(f) not ticketing other vehicles that are parked unlawfully; or(g) not registering its own vehicles in a timely way.[26] While these matters may cause those such as Mr Easton a certain sense ofmoral outrage, they do not afford Mr Easton with a defence to the land transportcharges. For the reasons I have given, the appeal must be dismissed._____________________Rebecca Ellis J