REGAL INVESTMENTS LIMITED AND ANOR V THE DIRECTOR OF LAND TRANSPORT SAFETY HC HAM CIV 2006-419-1311

REGAL INVESTMENTS LIMITED AND ANOR V THE DIRECTOR OF LAND TRANSPORT SAFETY HC HAM CIV 2006-419-1311 9 November 2007IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY CIV 2006-419-1311BETWEEN REGAL INVESTMENTS LIMITED DL AND KE WAHO TRADING AS WAHO TRANSPORT Appellants AND THE DIRECTOR OF LAND TRANSPORT SAFETY RespondentCIV 2006-419-001312AND BETWEEN T D HAULAGE LIMITED Appellant AND THE DIRECTOR OF LAND TRANSPORT SAFETY Respondent Hearing: 7 and 8 November 2007 Counsel: M Reed QC and P Morten for Appellants in CIV 2006-419-1311 P Davidson QC and I Rosic for Appellants in CIV2006-419-001312 AR Burns and AJ Pollett for the Respondent Judgment: 9 November 2007 at 1.00 p.m.JUDGMENT OF MacKENZIE JThis judgment was delivered by me on 9 November 2007 at 1.00 p.m., pursuant to Rule 540(4) of the High Court Rules. Registrar/Deputy Registrar Date: .Solicitors: Meredith Connell, P O Box 2213, Auckland for Respondent Harkness Henry, Private Bag 3077, Hamilton for Appellants in CIV 2006-419-1311 Harris Tate, P O Box 1147, Tauranga for Appellant in CIV 2006-419-001312[1] These are appeals against assessments made by a District Court Judge under s 18C of the Road User Charges Act 1977 ("the RUC Act"). The appeals, and cross- appeal, had been brought in reliance on s 72 of the District Courts Act 1947 ("the DC Act"). It had appeared to me, on reading the papers before the hearing, that a real question arose as to whether a right of appeal under s 72 existed. I raised that question with counsel at an early stage in the hearing. Counsel requested an opportunity to consider the matter and make submissions on the issue, and indicated a preference to resolve the issue of jurisdiction before proceeding with the substantive hearing of the appeals. Counsel preferred this course to the alternative suggestion which I made, that the hearing might proceed, with the issue of jurisdiction reserved, and with any issues which might, if I held that there was no right of appeal, be the subject of judicial review being deal with in that context. A ruling is accordingly required on the issue of whether there is a right of appeal under s 72. [2] Sections 18A to 18D of the RUC Act set out a process under which a District Court Judge may hold an inquiry as to whether the owner of heavy motor vehicles has held appropriate licences under the RUC Act to ensure payment of the appropriate amount of road user charges, and to make an assessment of the amount of road user charges that should have been paid if appropriate licences had been held. It is necessary, despite their length, to set out these sections in full The sections provide:18A District Court Judge may hold inquiry on application of [chief executive(1) A District Court Judge may, on the application of the [chief executive], hold an inquiry into the number and kind of licences that ought to have been obtained under this Act— (a) During a period specified in the application (being a period commencing not earlier than 6 years before the date of the application); and (b) For motor vehicles specified in the application (being motor vehicles that the chief executive believes were owned during the whole or any part of the period by a person specified in the application).(2) The chief executive shall not make an application to a District Court for the purposes of subsection (1) of this section unless he or she considers that it is likely that all the appropriate licences that ought to have been obtained during the period, and for the motor vehicles, specified in the application were not so obtained. (3) The chief executive may, in an application to a District Court Judge for the purposes of subsection (1) of this section, specify any convictions relating to offences under section 23 of this Act that have, during the period of 6 years immediately preceding the date of the application, been entered against the person specified in the application.18B Provisions relating to inquiries(1) For the purposes of any inquiry under section 18A of this Act, the District Court Judge may, of his own motion or on application, by written notice served on the person,— (a) Summon before him any person or persons (including, where the inquiry relates to a body corporate, any director or employee of the body) to give evidence; and (b) Require any person to produce for the inspection of the Judge, or of any other person authorised by the Judge for this purpose, any books, papers, accounting records, or other documents, or things, that are relevant to the inquiry. If any District Court Judge is satisfied that any person who has been summoned under paragraph (a) of this subsection will not attend to give evidence without being compelled to do so, he may issue a warrant (in the same form, with all necessary modifications, as is prescribed for the purposes of section 20(4) of the Summary Proceedings Act 1957) for the attendance of that person at the inquiry. (2) At any inquiry under section 18A of this Act,— (a) The District Court Judge may examine on oath any person; and for that purpose the Judge or a Registrar of a Court may administer an oath; and (b) The District Court Judge may receive as evidence any statement, document, information, matter, or thing, that in his opinion may assist him to deal effectively with the subject of the inquiry, whether or not it would ordinarily be admissible as evidence; and (c) The chief executive, and the person specified in the chief executive's application under section 18A of this Act, may each be represented by a counsel or agent; and (d) The chief executive and the person specified in the chief executive's application, or any counsel or agent representing them, may examine, cross-examine, and re-examine, inaccordance with the ordinary practice, any person summoned pursuant to subsection (1) of this section. (3) Every inquiry under section 18A of this Act shall take place in chambers and at such time or times as the District Court Judge determines. (4) The statement of every person examined under this section shall be taken down in writing, and signed by him in the presence of the District Court Judge, and copies thereof shall be delivered to the chief executive and to the person specified in the chief executive's application. The statement shall not form part of the records of the Court. (5) No person examined under this section shall be excused from answering any question on the ground that the answer may incriminate him or render him liable to any penalty. (6) No statement made by any person in answer to any question put to him in examination under this section, or document or thing produced pursuant to a requirement under this section, shall in criminal proceedings be admissible in evidence against him, except upon a charge of perjury against him in respect of his testimony upon that examination. (7) A District Court Judge may, for the purpose of assisting him in the exercise of his powers under section 18C of this Act, appoint any Registrar of a Court, chartered accountant, or other person or persons to inspect documents and things produced pursuant to a requirement under subsection (1)(b) of this section and consider statements made during the inquiry, and to report to him thereon. (8) A District Court Judge may order that any costs (or such part thereof as is specified by the Judge) incurred by— (a) The chief executive; or (b) The person specified in the chief executive's application; or (c) Any person summoned, or required to produce a document or thing, under this section,— in respect of an inquiry to which this section relates, shall be paid by the chief executive or the person specified in the chief executive's application, or both (in proportions specified by the Judge); and in any such case the costs so awarded shall be recoverable as a debt due by the person against whom they have been awarded to the person in whose favour they have been awarded.18C District Court Judge may make assessment(1) Where, after holding an inquiry under section 18A of this Act and considering any reports obtained pursuant to section 18B(7) of this Act, a District Court Judge considers, on the balance of probabilities, that all the appropriate licences that ought to have been obtained forthe motor vehicles specified in the [chief executive's] application during the period, and while they were owned by the person, so specified were not obtained, he may make an assessment of the amount of road user charges that in his opinion ought to have been, but were not, paid to the Crown in respect of those motor vehicles while they were owned by that person during that period. (2) In giving reasons for an assessment under this section a District Court Judge need not indicate how the assessment is calculated or what licences he considers ought to have been obtained. (3) Every assessment made by a District Court Judge under this section shall be delivered by him in open Court. (4) A District Court Judge may, when delivering an assessment, state the date from which the amount of the assessment shall be payable to the [chief executive] pursuant to subsection (5) of this section, which date may be earlier than the date the assessment is so delivered. (5) Where a District Court Judge makes an assessment under this section, the amount of the assessment shall, from the date the Judge delivers his assessment (or such other date, if any, as the Judge specifies pursuant to subsection (4) of this section), be payable to the chief executive by the person specified in the chief executive's application under section 18A of this Act; and, until paid in full to the chief executive, the amount shall constitute a debt due to the Crown by the person and may be recovered accordingly in any Court of competent jurisdiction.18D District Court Judge may make assessment by consentA District Court Judge may, instead of holding an inquiry and making an assessment under sections 18A and 18C of this Act, make an assessment by consent of the chief executive and the person specified in the chief executive's application under section 18A of this Act, and subsections (2), (3), (4), and (5) of section 18C shall apply to the assessment by consent accordingly.[3] Section 72 of the DC Act provides as follows:General right of appeal(1) This subsection applies to every decision made by a District Court other than a decision of a kind in respect of which an enactment other than this Act— (a) expressly confers a right of appeal; or (b) provides expressly that there is no right of appeal. (2) A party to proceedings in a District Court may appeal to the High Court against the whole or any part of any decision to whichsubsection (1) applies made by the District Court in or in relation to the proceedings.[4] There are, in essence, three requirements for the existence of a right of appeal: a) There must be a "decision"; b) That decision must be "made by the District Court"; and c) The decision must have been made in a "proceeding" which means "any application to the Court for the exercise of the civil jurisdiction of the Court other than an interlocutory application". My concern was as to whether the second and third of those requirements were met. The inquiry is specifically to be made by a District Court Judge, rather than by the District Court. Further, the power to conduct the inquiry is conferred by the RUC Act. It is not the exercise of the civil jurisdiction of the Court under Part 3 of the DC Act. [5] Similar reservations as to the jurisdiction in relation to appeal had been raised by Gendall J in Hay v Director of Land Transport Safety HC NAP AP10/98 15 August 2000. He said:[3] Initially I had some concerns about the High Court's jurisdiction to hear an appeal from an assessment made by a District Court Judge in exercising his powers under s 18A, s 18B and s 18C of the road user Charges Act 1977. That is because the inquiry and assessment undertaken by a District court Judge is clearly not a proceeding which would enable an appeal to be undertaken under the Summary Proceedings Act. The inquiry and assessment procedure is essentially administrative. There are unique provisions applicable to what is an inquisitorial procedure taking place in the chambers of the District Court Judge so that he may make an assessment on the balance of probabilities as to what financial liability, if any, should fall upon a person subject to such inquiry. Clearly the actions of the District Court Judge are subject to judicial review if there should be reviewable error or law in the conduct of such inquiry. [4] However, upon reflection I am satisfied that an inquiry and assessment under s 18A is a proceeding in terms of the District Courts Act 1947 where s 2 provides that "proceeding" means any application to the Court for the exercise of the civil jurisdiction of the Court other than an interlocutory application. Inquisitorial as may be the powers of a Judge,nevertheless he was exercising a civil jurisdiction and despite the inquiry being held in chambers the Act requires that the assessment or conclusion made by the District Court Judge shall be delivered by him in open Court. The decision of the Ministry of Transport v H & W Wallace Limited (1993) DCR 529 is an illustration of a s 18A procedure having the status of a civil proceeding for the purpose of the district Courts Act. As a consequence the civil appeal procedure laid down in the District Courts Act 1947 is applicable. This court has the wide powers contained in s 77 of that Act.[6] I shared Gendall J's concerns about the right of appeal, and considered that the conclusion that the inquiry and assessment involved an exercise by the Court of its civil jurisdiction merited a more detailed consideration than had been possible in that case. [7] The first requirement for the existence of a right of appeal under s 72 of the DC Act is that there be a "decision". That does not present any difficulty in this case. An assessment under s 18C of the RUC Act is, in the ordinary meaning of the word, a decision. That word is a defined term in s 2 of the DC Act, but the definition is framed in terms which permit the ordinary meaning to apply. Mr Davison referred, in this context, to Winstone Pulp International Limited v Attorney General(1999) 13 PRNZ 593 and Association of Dispensing Opticians of New Zealand Inc v Opticians Board (1999) 13 PRNZ 599. The first requirement is clearly satisfied. [8] It is convenient next to consider the third requirement, that the s 18A and 18C proceedings involve an application to the Court for the exercise of the civil jurisdiction of the Court. Counsel submit that a proceeding under the RUC Act provisions is, on the proper interpretation of these provisions, an application for the exercise of the civil jurisdiction of the District Court. Counsel submit, in effect, that proceedings in the District Court are to be categorised as either criminal or civil, and that, as these are not criminal proceedings, they must be civil. I do not agree. I consider that, on the wording of the RUC Act provisions, these form a separate class of proceedings which are not within either the criminal or the civil jurisdictions of the court. They are an instance of the many functions which are specifically conferred on the District Court, or its judges, by other enactments. I consider that it is clear that the exercise of the powers under the RUC Act is not an exercise by the Court of its ordinary civil jurisdiction. That is conferred by Part 3 of the DC Act.The jurisdiction in this case is specifically conferred by the RUC Act, not the DC Act. [9] Mr Davison submits that the exercise of the jurisdiction under the RUC Act is brought within the scope of the DC Act by s 124. That provides as follows:Application of ActWhere under any Act any power, authority, or jurisdiction is given to Judges, the proceedings shall be had and determined in a Court in accordance with this Act and the rules unless some other procedure is specially provided or required, and Judges in the exercise of that power, authority, or jurisdiction shall have all the powers given under this Act to Judges and to Courts, but, except as aforesaid or as expressly provided in this Act or the rules, nothing in this Act or the rules shall derogate from or affect the provisions of any other Act conferring any power, authority, or jurisdiction on Judges or on Courts.[10] The inquiry and assessment under the RUC Act is clearly a power, authority or jurisdiction given to Judges under an Act. The proceedings are therefore to be had and determined in a Court in accordance with the DC Act and rules unless some other procedure is specially provided or required. I consider that that section is crucial to the issue here. Where it applies, the function conferred by the other legislation is brought under the umbrella of the DC Act. The provisions in the DC Act apply to such proceedings. In my view, the provisions which apply must include the right of appeal under s 72. The "proceedings" to which s 72(2) refers include proceedings based on the jurisdiction conferred in Part 3 of the DC Act, and proceedings which are brought within the ambit of the DC Act by s 124. [11] The question, then, is whether this case involves a proceeding to which s 124 applies. This is clearly a case where, under an Act, jurisdiction is given to Judges. Section 124 will therefore apply "unless some other procedure is specially provided or required". Here, there is a procedure prescribed, in particular, under s 18B. Does that exclude the operation of s 124? Mr Davison submits that that procedure is not a comprehensive code for the conduct of such an inquiry, and that recourse to s 124 is therefore not excluded by the procedure provided for in s 18B. [12] I accept that that is the case. While s 18B does establish a procedure, which is essentially inquisitorial, that does not contain all of the provisions which might benecessary for the conduct of an inquiry. The inquiry procedure is an inquisitorial one. Reference to the Commissions of Inquiry Act 1908 provides a relevant comparison for the type of powers and procedures necessary for a person conducting an inquisitorial function. Not all of the powers are replicated in s 18B, and, as Mr Morten points out, there is not any cross-reference to the Commissions of Inquiry Act so as to apply those powers, as is commonly found where inquisitorial powers are conferred by statute. Because the RUC Act provisions do not contain a fully comprehensive procedure which either expressly or by necessary implication excludes supplementation by the DC Act and rules, I do not consider that the exclusion referred to in s 124 applies. [13] Accordingly, I accept Mr Davison's submission that s 124 applies in this case, with the result that the third requirement identified in para [4] above is satisfied. [14] The conclusion that s 124 of the DC Act applies is sufficient to deal also with the second requirement, namely that the decision be one of the District Court. While the RUC Act confers jurisdiction on a District Court Judge, s 124 has the effect of making the determination one of the Court. Where s 124 applies, the proceedings are to be "had and determined in a Court in accordance with this Act". [15] I consider that, in giving s 124 full effect, the proceeding to which s 124 applies must also be a proceeding to which s 72 of the Act applies. For these reasons, I consider that the appeals are properly brought pursuant to s 72. [16] It is a matter of considerable regret that the need to deal with this question has meant that the substantive hearing of the appeals must necessarily be deferred. These should be allocated a further fixture as soon as that can be arranged. .......................................... MacKenzie J