NARESH v NEW ZEALAND TRANSPORT AGENCY [2019] NZHC 523

NARESH v NEW ZEALAND TRANSPORT AGENCY [2019] NZHC 523 [21 March 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-002154[2019] NZHC 523BETWEEN RAJ NARESHAppellantAND NEW ZEALAND TRANSPORT AGENCYRespondentHearing: 21 March 2019Appearances: Appellant in personH Reid for respondentJudgment: 21 March 2019INTERIM JUDGMENT OF LANG J[on issues as to jurisdiction]This judgment was delivered by me on 21 March 2019 at 3.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] Mr Naresh wishes to earn a living as a taxi driver. In order to do so he musthold a P endorsement on his drivers licence. He has held such an endorsement in thepast, but in 2009 and 2014 the New Zealand Transport Agency (the Agency) declinedto renew the endorsement because of persistent traffic offending by Mr Naresh.[2] Mr Naresh appealed against the latter decision to the District Court, but in adecision delivered on 2 June 2015 Judge Bergseng dismissed the appeal on the basisthat Mr Naresh was not a fit and proper person to hold a P endorsement.1 The Judgedisqualified Mr Naresh from holding such an endorsement for six years from 12 June2011. The Judge's decision was upheld on appeal to this Court.2[3] When the period of disqualification expired, Mr Naresh immediately appliedfor a P endorsement. The Agency declined to grant it on the ground that he was not afit and proper person to hold such an endorsement. Mr Naresh again appealed to theDistrict Court, but in a decision delivered on 7 September 2018 Judge A A Sinclairdismissed the appeal.3 Mr Naresh now seeks to appeal to this Court against thatdecision.[4] Two preliminary issues need to be determined before the appeal can be heard.Both relate to the question of whether this Court has jurisdiction to hear and determinethe appeal. The issues are:(a) Did Mr Naresh bring the appeal within 20 working days as required bys 111A(2) of the Land Transport Act 1998 (the Act) and r 20.4 of theHigh Court Rules 2016 (the Rules)?(b) Does the appeal raise a question of law in terms of S 111A(1) of theAct?1 Naresh v New Zealand Transport Agency [2015] NZDC 6324.2 Naresh v New Zealand Transport Agency [2015] NZHC 2113.3 Naresh v New Zealand Transport Agency [2018] NZDC 18612.Did Mr Naresh bring the appeal within 20 working days as required by s 111A(2)of the Act and r 20.4?[5] Section 111A of the Act provides as follows:111A Appeal to High Court on question of law(1) A party to an appeal under section 106 who is dissatisfied with thedecision of the District Court on the grounds that it is erroneous in lawmay appeal to the High Court on that question of law.(2) An appeal under this section must be heard and determined inaccordance with the rules of the High Court.[6] Rule 20.4 of the Rules provides that, if a party has a right of appeal to the HighCourt, an appeal must be brought within the time specified in the enactment providingthe right of appeal or, in every other case, within 20 working days after the decisionappealed against is given. The Act does not specify when an appeal under s 111A mustbe brought. As a result, any such appeal must be brought within 20 working days asrequired by r 20.4. It follows that in the present case Mr Naresh was required to bringany appeal under s 111A no later than 5 October 2018, being 20 working days afterthe Judge delivered her decision.[7] Rule 20.6 of the provides that an appeal is brought when the appellant files anotice of appeal and serves a copy of the notice on every party directly affected by theappeal. Mr Naresh was therefore required to both file the notice of appeal and servea copy of it on the respondent no later than 5 October 2018. There is no dispute thatMr Naresh filed the notice of appeal in this Court on 4 October 2018. An issue arises,however, as to whether he also served it within the time permitted by r 20.4.[8] The issue is complicated by the fact that Mr Naresh wrongly named the lawfirm Meredith Connell as the respondent in his notice of appeal. That error wascorrected on 6 November 2018, when Hinton J directed that the Agency be substitutedas respondent.[9] Mr Naresh maintains that he posted a copy of the Notice of Appeal to MeredithConnell on 3 October 2018. He marked it as being for the attention of Ms McConachywho appeared as counsel for the Agency at the hearing in the District Court. It appearsthat Meredith Connell has no record of receiving the notice. If Mr Naresh is correctin his assertion, however, it is likely that the notice would have been served within theprescribed time because at that stage Meredith Connell was the respondent named inthe notice of appeal.[10] On this point I am prepared to accept Mr Naresh's assertion even though thereis no independent evidence to support it. I therefore proceed for present purposes onthe basis that Mr Naresh brought the appeal within the 20 working day periodprescribed by r 20.4.Does the appeal raise a question of law?[11] The procedure governing the appeal to the District Court was prescribed bys 111 of the Act, which provides:111 Procedure(1) Every appeal under this Act to the District Court must be brought, byway of originating application, not later than 28 days after the date onwhich the appellant was notified of the decision appealed against, orwithin such further period as the District Court may allow.(2) In dealing with an appeal under this Act, the District Court may hearall evidence tendered and representations made by or on behalf of anyparty to the appeal that the court considers relevant to the appeal,whether or not that evidence would be otherwise admissible in thatcourt.(3) Every such appeal must be made and determined in accordance with[the District Court Act 2016] and the rules of court made under thatAct, but the application of that Act and those rules is subject to theother provisions of this section.(4) Subject to sections 107, 111A, and 111B, the decision of the DistrictCourt on any appeal under this Act is final.[12] Sections 107 and 111B are irrelevant for present purposes. They relate toappeals against orders for disqualification from driving and appeals to the Court ofAppeal respectively. The only basis on which Mr Naresh could appeal to this Courtagainst the Judge's decision is under s 111A of the Act, which relevantly provides:111A Appeal to High Court on question of law(1) A party to an appeal under section 106 who is dissatisfied with thedecision of the District Court on the grounds that it is erroneous in lawmay appeal to the High Court on that question of law.[13] The insertion of s 111(4) demonstrates Parliament's intention that the decisionof the District Court should be final subject only to a limited number of exceptions,one of which is that an appellant may apply to the High Court on a question of law.An appellant seeking to advance a second appeal to this Court must therefore identifythe question of law that will form the basis of the appeal.[14] The latest version of Mr Naresh's notice of appeal can be disregarded forpresent purposes because it states the sole grounds of the appeal as being "Miscarriageof justice", "Unfair decision by Her Honour Judge Sinclair" and "Original Applicationto be Reheard".4 Those are clearly not questions of law for the purposes of s 111A.[15] In a document attached to the original notice of appeal Mr Naresh sets outseveral arguments in support of the present appeal. First, he refers to observationsmade by Brewer J about Mr Naresh's traffic convictions in his judgment dismissingMr Naresh's appeal against Judge Bergseng's decision in 2015. Those issues areplainly not relevant to any appeal against Judge Sinclair's decision.[16] Next, the document refers to evidence given before Judge Sinclair by MrMichael Beedell regarding Mr Naresh's traffic offence history. He criticises theaccuracy of this evidence but that is a factual issue and does not raise any question oflaw. Mr Naresh then gives reasons or explanations for traffic offences he was chargedwith between March 2015 and June 2018. Again, no question of law is evident fromthese.[17] The document ends with the following plea by Mr Naresh:Final SubmissionYour Honour I started driving taxis in 1975 and in 1991 I wassuspended for 5 years. From 1997 I did not have any issue for therenewal of my P endorsement until 2008 and then January 2009 the4 Emphasis not added.application was declined and then approved in 29th June 2010 until2011.(a) From 1997 to 2011 I had no complaints from any member of public(b) No intake of drugs of any kind or sort(c) No complaints for sexual harassment(d) No indecent acts committed with passengers(e) No complaints from the police of any kind(f) No complaints of overcharging at allYour Honour I request the court if the P endorsement can be grantedclaiming I will approve that I am a fit and proper person to serve themembers of the public.(g) It is very hard to live on a super benefit and to meet all mycommitments, e.g. mortgage, insurance rates and house contentsinsurance and mortgage repairmen insuranceSo I request the court to make my life easy to earn extra income andmake a happy living.Please I will supply additional information to the court soon.[18] These submissions proceed on the basis that this Court has the ability toreconsider the issue that was before the District Court afresh. That is not the case.The Court may only entertain a review on questions of law. None of these submissionsraise any question of law.[19] During the hearing I gave Mr Naresh a further opportunity to nominate thequestions of law he wished this Court to determine. He emphasised that the hearingbefore Judge Sinclair wrongly proceeded on the basis that he had 107 trafficconvictions as at the date of the earlier hearing before Judge Bergseng when he onlyhad 43 as at that date. Judge Sinclair only referred to this issue, however, when sheset out the background to the appeal during the opening paragraphs of her decision.5Judge Sinclair's focus was understandably not on the convictions Mr Naresh hadsustained prior to 2014 but rather on those he had accumulated between 2014 and2017. This is evidenced by the following passage in her decision:[24] Even if some of the entries on the traffic charges schedule are notcorrect, the entries referred to related to offending which is now of a historicalnature. What is significant is that the appellant has continued to offend. Atthe time his P endorsement was last renewed in 2010, the appellant waswarned that if he continued to offend a fresh determination as to his fitness tohold a P endorsement would be made. In his 2014 decision, Mr Stevensonobserved that the appellant had committed 24 offences since this warning hadbeen issued.5 Naresh v New Zealand Transport Agency above n 3, at [5].[20] The Judge also noted that Mr Naresh accepted he had been convicted of severalfurther traffic offences between 2014 and 2017 but maintained he had explanations fortwo convictions entered in 2018.6 I do not consider any question of law arises out ofthe fact that Mr Naresh continues to dispute the number of convictions he sustainedprior to 2014.[21] Mr Naresh also contended the Judge seemed to be ill-disposed towards him atthe hearing and became impatient with him. The transcript of the hearing reveals thatthe Judge was required to intervene on several occasions when Mr Naresh was givingevidence and when he was cross-examining witnesses. This is not unusual when aparty elects to conduct a hearing without the assistance of a lawyer. The number andnature of the occasions on which the Judge intervened during the hearing do not,however, suggest the Judge was biased against Mr Naresh or in favour of theprosecution so as to give rise to an arguable question of law.[22] Mr Naresh ultimately asked me to adjourn the hearing to enable him to consulta lawyer. This fixture was allocated in November 2018 and Mr Naresh has thereforealready had ample opportunity to consider his position and to seek legal advice. I amprepared, however, to provide him with a further and final opportunity to take thosesteps. I have therefore given Mr Naresh until 9 May 2019 to file and serve furthersubmissions identifying any question of law he considers this Court should determine.If he does not file any submissions by that date the appeal will be struck out. If hefiles further submissions I will issue a Minute giving directions as to whether therespondent is required to file submissions in response.Lang JSolicitors:Crown Solicitor, AucklandCopy to: Appellant6 Naresh v New Zealand Transport Agency above n 3, at [28].