Infringement offences
Wellington City Council v McCready
Judge Keane described the infringement offence procedure as:
… a process which enables offences of the least relative significance to be processed swiftly, efficiently, and inexpensively. To enable this to happen it abrogates minimum rights, and reverses the usual onuses. But, equally, it transforms the offence into an infringement, and no conviction is ever imposed. The transformation is not complete. The one who commits the infringement faces a liability which can be enforced, like a fine. But the absence of a conviction is a distinction of real, and probably decisive, significance.
[1995] DCR 536.
Legislation
The relevant legislation is as follows.
The infringement offence procedure is not a new procedure. Territorial authorities have used the procedure for many years for parking infringements. Infringement notices can be issued under a number of statutes including the Transport Act 1962, the Biosecurity Act 1993, the Dog Control Act 1996, the Land Transport Act 1998 and the Litter Act 1979.
RMA – sections 343A to 343D
Section 343A
Section 343A defines “infringement fee” as the amount fixed by regulations, and “infringement offence” as an offence specified as such in regulations.
Section 343B
Section 343B provides:
Where any person is alleged to have committed an infringement offence, that person may either–
(a) Be proceeded against for the alleged offence under the Summary Proceedings Act 1957; or
(b) Be served with an infringement notice as provided for in section 343C.
In accordance with s 343B, the local authority may elect to proceed summarily by laying an information (charge) under s 338 of the RMA or by way of the infringement procedure. If the local authority elects to proceed summarily,the maximum penalties that can be imposed are those prescribed in s 339 of the RMA.
Note
Offences against the RMA are summary offences. An offence for which the defendant may not be proceeded against by indictment, except pursuant to an election by the defendant to be tried by a jury, is a summary offence. The definition of “summary offence” in s 2 of the SPA is:
“Summary offence” means any offence for which the defendant may not, except pursuant to an election made under section 66 of this Act, be proceeded against by indictment; and, where the enactment creating an offence expressly provides that it may be dealt with either summarily or on indictment, includes such an offence that is dealt with summarily”.
The option of issuing an infringement notice instead of prosecution is only available for some of the offences under the RMA. Sections of the RMA that give rise to an infringement offence (below) lists the offences for which the infringement procedure is available. The offences for which the infringement procedure is not available include breach of an enforcement order and breach of s 15C (see Appendix 2D).
Local authorities should consider the scale of the offending involved when deciding whether to prosecute or to issue an infringement notice. Evidence of adverse effects and/or likely adverse effects should be collected and considered carefully. To help achieve consistency of decision-making, local authorities should put in place policies on when infringement notices will be issued.
Section 343C
Section 343C provides:
- that where a notice has been issued, proceedings may be commenced in the District Court in accordance with s 21 of the Summary Proceedings Act 1957.
Section 343D
Section 343D provides that a local authority shall be entitled to retain all infringement fees received for notices issued by its enforcement officers.
Summary Proceedings Act 1957
Section 21
Section 21 of the Summary Proceedings Act (the SPA) specifies the various options for initiating infringement offence proceedings and sets out the steps that may be taken after an infringement notice has been issued, by an informant or by the person served with a notice.
Section 2 definitions
The words “defendant”, “informant”, “infringement fee”, “infringement notice” and “infringement offence” are defined in s 2 of the SPA. In relation to an infringement offence for which an infringement notice has been issued:
Section 78A
Section 78A of the SPA provides that a conviction is not imposed for an infringement offence.
Wood v Police 18/11/98
Wood appealed a conviction and sentence of a $160 fine, Court costs of $95 and an order to attend a defensive driving course. The High Court quashed the record of conviction and held that s 78A of the SPA applies and requires that a conviction not be recorded. The Court also quashed the order that the appellant attend a defensive driving course because the only penalty that can be imposed for an infringement offence is a fine and costs.
Gendall J, HC Wanganui AP1/98
Section 78B
Section 78B of the SPA allows for correction of irregularities.
Issue of an infringement notice
Form for infringement notice
The form for the infringement notice is in Schedule 2 of the Regulations. The enforcement officer must correctly identify the section of the RMA that has been contravened.
Sections of the RMA that give rise to an infringement offence
Schedule 1 of the Regulations sets out the sections of the RMA that give rise to an infringement offence when contravened, and the infringement fee for the offence. These are summarised in the table below.
Offence specified as infringement offence |
General description of offence |
Infringement fee for offence |
|---|---|---|
Section338(1)(a) |
Contravention of section 9 (restrictions on use of land).
|
$300 |
|
Contravention of section 12 (restrictions on use of coastal marine area).
|
$500 |
|
Contravention of section 13 (restriction on certain uses of beds of lakes and rivers).
|
$500 |
|
Contravention of section 14 (restrictions relating to water).
|
$500 |
|
Contravention of section 15(1)(a) and (b) (discharge of contaminants or water into water or onto or into land where contaminant is likely to enter water).
|
$750 |
|
Contravention of section 15(1)(c) and (d) (discharge of contaminants into environment from industrial or trade premises).
|
$1,000 |
|
Contravention of section 15(2) (discharge of contaminant into air or onto or into land).
|
$300 |
Section 338(1)(c) |
Contravention of an abatement notice (other than a notice under section 322(1)(c)).
|
$750 |
Section 338(1)(d) |
Contravention of a water shortage direction under section 329.
|
$500 |
Section 338(1)(a) |
Contravention of section 15A(1)(a) (dumping of waste or other matter from any ship, aircraft, or offshore installation)
|
$500 |
Section 338(1)(b) |
Contravention of section 15B(1) and (2) (discharge in the coastal marine area of harmful substances contaminants, or water from a ship or offshore installation)
|
$500 |
Section 338(2)(a) |
Contravention of section 22 (failure to provide certain information to an enforcement officer).
|
$300 |
Section 338(2)(c) |
Contravention of an excessive noise direction under section 327.
|
$500 |
Section 338(2)(d) |
Contravention of an abatement notice for unreasonable noise under section 322(1)(c). |
$750 |
What to include in an infringement notice
Section 343C(3) of the RMA provides that the infringement notice shall be in the form prescribed in the Regulations and shall include the summary of rights. The notice must include the:
Note
It is not necessary for local authority enforcement officers to have identification numbers. The infringement notice form is based on the form used for infringement notices under other legislation, including the Transport Act, under which territorial authorities issue parking tickets. For obvious reasons parking wardens will wish to remain anonymous. The local authority enforcement officer will usually have contact with the offender and will have identified himself/herself prior to issuing the infringement notice.
Section of Resource Management Act 1991 contravened
Section 15(1)(b), being an offence against section 338(1)(a) of the Resource Management Act 1991.
Nature of infringement:
You discharged a contaminant, namely cowshed effluent, onto land, in circumstances which may have resulted in that contaminant (or any other contaminant emanating as a result of natural processes from that contaminant) entering water, namely a tributary of the Waitekauri Stream, when the discharge was not expressly allowed by a rule in a regional plan and in any relevant proposed regional plan, a resource consent, or regulations.
Recovery of costs and remedial action
The Regulations, Schedule 2, summary of rights, clause 1, informs the recipient that:
If you pay the infringement fee within 28 days after the service of this notice, no further action will be taken against you in respect of this infringement offence. Payments should be made to the enforcement authority at the address shown on the front of this notice.
There is provision in s 314(1)(d) of the RMA for a local authority to recover costs by application for an enforcement order. It is arguable that the effect of clause 1 is that if an infringement notice is issued and the fee paid, this is the end of the matter and the local authority cannot take any further steps to recover costs. It is also arguable that the effect of clause 1 is that an abatement notice cannot be issued requiring remedial action.
Multiple parties
When a number of people are responsible for the activity, a separate infringement notice can be issued to each person who has caused the problem (eg, the owner and occupier, the company directors and employees, and any others).
Continuing offences
Section 339(6) of the RMA provides:
The continued existence of anything, or the intermittent repetition of any actions, contrary to any provision of this Act shall be deemed to be a continuing offence.
If there is a continuing offence (eg, discharge of cowshed effluent into water in contravention of s 15(1)(a) on 1 November, 10 November and 20 November), on each day the person responsible has committed a separate offence. The local authority can issue a separate infringement notice for each day the offence occurs. If infringement notices are issued for the 1 November, 10 November and 20 November offences and on 11 December the offence is still occurring, the local authority can either prosecute for the 11 December offence or issue another infringement notice.
Reminder notice
When should the local authority issue a reminder notice?
If the recipient does not pay the infringement fee and does not request a hearing within 28 days of the date of service of the infringement notice, the local authority can issue a reminder notice.
Form of reminder notice
The form prescribed for the reminder notice is the new Form 10 in the First Schedule of the Summary Proceedings Regulations 1958.Section 21(2) of the SPA requires that the reminder notice contain the same or substantially the same particulars as the infringement notice. If the reminder notice is materially different to the infringement notice, the local authority runs the risk of the infringement proceedings failing. Once a reminder notice has been issued, the person receiving the notice has 28 days after the date of issue of the reminder notice to pay the infringement fee.
Payment by instalments
What the legislation says
Section 21(3A) of the SPA provides that an arrangement can be made to pay by instalments if:
Arrangements with local authorities
The local authority may - but is not required to - enter into an arrangement allowing the defendant to pay by instalments. The arrangement must be entered into within six months after the date of the offence and be completed within 12 months after the date of the offence. If the defendant defaults in payment of any instalments, the local authority can enter into another arrangement for payment by instalments or serve a reminder notice on the defendant (note: the reminder notice should include a record of the amount of infringement fee unpaid). If a reminder notice is issued, the defendant does not have the option of requesting a hearing.
What happens when the defendant fails to pay the infringement fee and does not request a hearing?
Local authority options
The defendant has 28 days from the date of service of the reminder notice to pay the infringement fee or request a hearing. If the defendant fails to either pay the fee or request a hearing, the local authority has two options.
Figure: Infringement notice procedure: Defendant does not pay or request hearing
View figure at full size, including text description
Text description of figure:
The chart shows the procedure whereby a defendant defends an infringement notice served on them. Within seven days of the service of the infringement notice the defendant delivers notice to the informant of their intention to rely on s 341 defence. The defendant will specify facts that support reliance on defence. The informant may choose to take no further action, or to serve a reminder notice on the defendant.
What happens if the local authority files a copy of the notice in Court?
Under the Summary Proceedings Act (Section 21(5))If the local authority files a copy of the reminder notice / infringement notice in Court, an order is then deemed to have been made that the defendant pay a fine equal to the infringement fee for the offence and costs of the prescribed amount (currently $30). The defendant cannot file an appeal or apply for a rehearing because there is no actual judicial decision.
Points to watch
Van Kan v Auckland City Council
An infringement notice was issued to Van Kan. Van Kan did not request a hearing and did not pay the infringement fee. Van Kan filed an appeal in the High Court. The High Court dismissed the appeal and held that there was nothing on which Van Kan could base an appeal because:
There has to be a “determination” of a District Court before the right of appeal arises; infringement notices not the subject of requests for hearing cannot give rise to an appeal.
The High Court also considered whether Van Kan could apply for a rehearing under s 75 of the SPA. The Court held that s 75 of the SPA provides for a “rehearing after a defendant has been convicted on a hearing of any information or complaint”.
The Court held that s 78B of the SPA gives limited power to correct irregularities in proceedings for infringement notices and a rehearing may only be ordered if the defendant did not receive a reminder notice or a copy of the notice of hearing, or if there had been some other irregularity in the procedure. The Court held that Van Kan had no grounds to apply for a rehearing. Barker J said:
I can only suggest to the appellant and those who find themselves in the same situation as he, that it is absolutely imperative for a citizen wishing to defend a charge which is the subject of an infringement notice, that notice of a desire to have a hearing is given within the time limit prescribed.
Barker J commented that there was the possibility Van Kan could apply for a judicial review but noted that there could be jurisdictional problems with an application for judicial review.
12/5/92, Barker J, HC Auckland AP98/92
Case example A
Davies v Ministry of Transport
The Court of Appeal held that the appeal jurisdiction of s 115 of the SPA arises only when there has been a “determination by the District Court of any information or complaint”, and this requires that an actual judicial decision has been made.
A fine recorded under s 21(5) of the SPA without any judicial intervention by the District Court is not a determination of an information by the District Court and does not give rise to a right of appeal under s 115 of the SPA. The Court held that the defendant does not have a right of appeal if an order is made under s 21(5) of the SPA. Richardson J said:
Indeed, the s 21 procedure was introduced to provide an automated system of dealing with the very large number of minor matters that had been going before the Court in the minor traffic offence jurisdiction under the former s 21. If the person concerned fails to respond to the infringement notice and reminder notice, the informant Ministry’s computer discs then generate, through the District Court computer system, the record required under s 21(5) and the appropriate notice of fine. Nothing in that process can be characterised as a determination of an information by the District Court. What that expression contemplates is an actual judicial decision.
1989] 3 NZLR 300.
Request for a court hearing
Form of request
Section 21(6) of the SPA provides that the defendant can request a Court hearing before or within 28 days after service of a reminder notice. The local authority may also allow the defendant extra time to request a hearing. The request must be in writing, signed by the defendant and delivered to the local authority at the address specified in the infringement notice. The defendant can either admit liability or not admit liability (SPA section 21(7)).
Figure: Infringement notice procedure: Defendant requests hearing
See figure at full size, including text description.
Figure: Infringement notice procedure: Defendant defends notice / provides explanation
Text description of figure:
The chart shows the procedure whereby a defendant defends an infringement notice served on them. Within seven days of the service of the infringement notice the defendant delivers notice to the informant of their intention to rely on s 341 defence. The defendant will specify facts that support reliance on defence. The informant may either:
When a request for a hearing is not clear
The defendant may not make it clear that he/she requests a hearing. The Department for Courts Operational Circular (CRM/00/13 2000/12) notes that:
We have been advised by the Police Infringement Bureau (PIB) and the New Zealand Association of Parking Enforcement Authorities (NZAPEA) that they are taking a far more lenient approach when they receive correspondence. If a person implies they wish to “defend” the infringement offence in a letter, then the Prosecuting Authority sets it down for hearing.
If it is not clear whether or not the defendant is requesting a hearing, we suggest that the local authority ask the defendant to clarify whether a hearing is being requested.
Admission of liability
Local authority options
If the defendant admits liability and requests a hearing, the defendant can make submissions on the appropriate penalty or other matters they wish the Court to consider. If the defendant admits liability the local authority has two options.
What happens if the local authority files a notice of hearing in Court?
If the local authority commences proceedings, the Court may order the defendant to pay a fine and will order the defendant to pay costs. There is no opportunity for either the local authority or the defendant to make oral submissions to the Court.
The local authority is not required to - and should not - serve a copy of the notice of hearing on the defendant.
Points to watch
Adam v Wellington City Council
Adam was issued with a notice for a parking infringement, and a reminder notice. Adam wrote to the Council admitting liability and provided an explanation. The Council filed a notice of hearing in Court and arranged for the notice of hearing to be served on Adam. This meant that a hearing took place in open Court rather than being dealt with by Justices of the Peace in chambers. As the hearing took place in open Court, $95 (now $100) of Court costs was imposed rather than the $25 (now $30) that would have been imposed in chambers.
The Council had not followed the correct procedure. Adam appealed. The High Court held that the notice of hearing should not have been served on Adam. The Judge said:
In my view it is entirely undesirable that a stated procedure should be varied unilaterally by the informant even if the byproduct of it gives an opportunity to be heard. The Act clearly in these circumstances, contemplates no opportunity of being heard other than by way of submission. To create an alternative way of proceeding is confusing and in my view unlawful, and it should not have been done.
25/02/98, Heron J, HC Wellington AP18/98.
No admission of liability
If the defendant does not admit liability, and requests a hearing, the local authority has two options.
If the defendant does not admit liability, in most cases the defendant will raise a defence (refer Defences below).
Defences
Defences are set out in clause 8 of the summary of rights in Schedule 2 of the Regulations.
Clause 8(1) defence
The defence in clause 8(1) is identical to the defence in s 341 of the RMA. If the defendant wishes to raise the defence in clause 8(1) he/she must deliver written notice to the local authority within seven days of receipt of the infringement notice ( Regulations, Schedule 2, summary of rights, clause 8(2)).
Clause 8(3) defence
The defence in clause 8(3) was intended to be identical to the defence in s 340(2) of the RMA. However, there is a drafting error as outlined:
For a defence available to a body corporate the requirement in clause 8(3) to undertake remedial action is expressed as in the alternative.
Local authority options
If the defendant raises a defence as set out in clause 8, or any other defence, the local authority should consider the defence carefully. The local authority has two options.
Circumstances
A person receiving an infringement notice may raise “any matter relating to circumstances” of the offence, by writing to the local authority within 28 days of the date on which the infringement notice was served or delivered to the person (Regulations, Schedule 2, summary of rights, clause 2).
The local authority has the discretion to either accept the circumstances that are raised and take no further action, or continue with the infringement process by issuing a reminder notice.
Figure: Infringement notice procedure: Defendant raises further matters
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Notification to defendant of no further action
In paragraphs Local authority options (when the defendant fails to pay the infringement fee and does not request a hearing), Local authority options (Admission of liability), No admission of liability, Local authority options (defense) and Circumstances the option of no further action is referred to. There is no statutory obligation for the local authority to notify the defendant if it decides to take no further action. However, our view is that if a local authority decides to take no further action it should notify the defendant as a matter of courtesy.
Which Court should the reminder notice and notice of hearing be filed at?
The SPA does not require that the reminder notice or the notice of hearing be filed at the District Court closest to where the defendant lives. The practice for reminder notices and notices of hearing under other legislation has been to file at the Court that is closest to the prosecuting authority. This means that local authorities generally deal with the same Court.
A defendant can apply for a transfer of the proceedings to the Court that is closest to the defendant. We suggest that if the defendant denies liability and requests a hearing, the local authority discuss with the defendant the venue for the hearing.
Determination of infringement offence by the Court
A Court hearing takes place only if the defendant requests a Court hearing.
Admission of liability
If the defendant admits liability, the proceedings will be considered by Justices or a District Court Judge on the papers before them without hearing oral submissions from either party. The Court will find the defendant guilty.
No admission of liability
If the defendant does not admit liability, the defendant is required to appear in Court and present his/her case to the Court. The Justices or the Judge will then make a determination. The Court may find the defendant either guilty or not guilty. If the defendant does not appear in Court on the allocated hearing date, the local authority should call evidence to prove the offence.
Fine and costs
If the Court finds the defendant guilty, the Court may impose a fine and will impose costs of the prescribed amount (currently $30). The Court can also order the defendant to pay further costs.
What is the standard of proof?
The local authority is required to prove the infringement offence to the standard beyond reasonable doubt ( see Wood v Police 18/11/98, Gendall J, HC Wanganui AP1/98). The standard of proof required of the defendant to establish a defence is on the balance of probabilities (see glossary).
Presumptions
A local authority is not obliged to prove the validity of the infringement notice, service of the infringement notice, reminder notice or notice of hearing, or that the infringement fee has not been paid.
Section 21(12) of the SPA provides:
In any proceedings for an infringement offence for which an infringement notice has been issued it shall be presumed, unless the contrary is proved, that–
(a) The infringement notice in respect of the offence has been duly issued, and the notice, or a copy of the notice, has been served on the defendant:
(b) Any reminder notice or copy of a notice of hearing required to have been served on the defendant has been duly served:
(c) The infringement fee for the offence has not been paid as required under this section.
It is open to the defendant to prove, on the balance of probabilities, that one or more of the steps in s 21(12) of the SPA were not properly taken.
Police v Reeves
An infringement notice was issued for a speeding offence. The Court held that there was no evidence the infringement notice was incorrect and the Police were entitled to rely on the presumption in s 21 of the SPA.
[1997] DCR 413
Correction of irregularities
Section 78B of the SPA provides that if the defendant did not receive the reminder notice or a copy of the notice of hearing, or if some other irregularity occurred in the procedures leading up to the order for the fine or costs, the Court can, on the application of the defendant:
- make an order as to costs.
The Department for Courts has distributed to local authorities a helpful Information Pack on the infringement offence procedure, which covers applications to correct irregularities.
Errors in an infringement notice, reminder notice and/or notice of hearing
The notice of hearing filed in Court is to be treated as an information, and a copy of the notice served on the defendant is to be treated as a summons to the defendant (SPA section 21(8). If there is an error in the infringement notice, the reminder notice and/or the notice of hearing, s 204 of the SPA applies and the notices are invalid if there has been a miscarriage of justice. If there is an error in the notice of hearing, the local authority at the hearing can seek an amendment according to s 43 of the SPA.
SPA s 204:
No information, complaint, summons, conviction, sentence, order, bond, warrant, or other document, and no process or proceeding shall be quashed, set aside, or held invalid by any District Court or by any other Court by reason only of any defect, irregularity, omission, or want of form unless the Court is satisfied that there has been a miscarriage of justice.
SPA s 43:
Amendment of information where defendant appears–
(1) Subject to the succeeding provisions of this section, where the defendant appears to answer a charge to which this Part of this Act applies, the Court may amend the information in any way at any time during the hearing.
(2) Without limiting the generality of the powers conferred by subsection (1) of this section, it is hereby declared that those powers shall include power to amend an information by substituting one offence (whether an indictable offence or a summary offence) for another offence (whether an indictable offence or a summary offence), and shall also include power to amend the information to an information to which Part V of this Act applies.
(3) Where under subsection (2) of this section any information is amended by substituting one offence for another, then, subject to the provisions of subsection (4) of this section, the following provisions shall apply:
(a) Subject to the provisions of paragraphs (b), (c), and (d) of this subsection, the hearing shall be continued as if the defendant had originally been charged with the substituted offence:
(b) If the substituted offence is one to which section 66 of this Act applies, the defendant shall, before the hearing is continued, be entitled to elect to be tried by a jury for that offence, and the provisions of that section, with the necessary modifications, shall accordingly apply as if for the words “before the charge is gone into” in subsections (1) and (2) of that section there were substituted in each case the words “before the hearing is continued”:
(c) Before the hearing is continued, the substance of the charge as amended shall be stated to the defendant and he shall be asked how he pleads; and, if he pleads guilty, the Court may convict him or deal with him in any other manner authorised by law:
(d) Any evidence already given shall be deemed to have been given in and for the purposes of the hearing of the charge as amended, but either party shall have the right to examine or cross examine or re-examine any witness whose evidence has already been given in respect of the offence originally charged.
(4) Where under subsection (2) of this section any information is amended to an information to which Part V of this Act applies, the case shall be dealt with under that Part in all respects as if the defendant had originally been charged under that Part with the indictable offence stated in the amended information.
(5) The Court may, at the request of the defendant, if it is of opinion that he would be embarrassed in his defence by reason of an amendment made or proposed to be made under this section, adjourn the hearing of the case.
Case example B
Hall v Ministry of Transport
An infringement offence notice was issued to Hall for speeding. Hall did not pay the infringement fee. A reminder notice was issued to Hall.
Hall made a written request for a hearing. The Ministry of Transport (MOT) filed a notice of hearing. One of the defences raised by Hall was that the infringement notice was invalid because it did not indicate that Hall’s rights to dispose of the matter by paying the fee continue until 28 days after service of a reminder notice.
The form did not comply with s 42A(7)(g) of the Transport Act, which requires infringement notices to contain a summary of the provisions of s 21(10) of the SPA. The MOT had in fact used the form prescribed by the Transport (Infringement Offences Notices) Regulations 1987, but there was a mistake in the form.
Hall did not claim there had been any miscarriage of justice. He did not say the infringement notice misled him. He did not pay the infringement fee and exercised his right to request a hearing. Hall’s defence that the infringement notice had an error in it was a defence on a technical ground.
The Court of Appeal held that the infringement notice had defects but, there being no miscarriage of justice, s 204 of the SPA precludes it or the proceeding from being held invalid. The Court of Appeal also held that s 78B of the SPA only applies if the defendant is deemed, on the filing of a reminder notice, to have been ordered to pay a fine and costs, or if the defendant has been so ordered on a hearing following a notice of hearing.
The Court held that s 78B cannot be invoked before an order adverse to the defendant has been made or is deemed to have been made. The Court said that s 78B:
… is interesting as revealing an appreciation by Parliament that irregularities could well occur in implementing the rather complicated infringement notice procedure. It does not purport to supersede s 204, but gives a useful specific power, which a District Court Judge may exercise if the irregularity does not come to light until after an order has been made. If an irregularity is drawn to notice earlier, s 204 is available and it would be absurd to insist on waiting until the s 78B stage.
1991] 2 NZLR 53 (CA).
Case example C
Greenfield v Police
Greenfield appealed a fine of $60 for speeding. Greenfield argued that the notice of hearing had a number of errors in it. The High Court agreed that there were three errors in the notice of hearing.
The first error was that the registration number of the motor vehicle was incorrect, the second was that the date of issue of the infringement notice was incorrect, and the third was that the date of the offence was incorrect.
However, the Court held that there was no miscarriage of justice and the notice of hearing was not invalid because the information in the infringement notice and the reminder notice was correct and therefore Mr Greenfield could not have been in any doubt as to what was alleged against him.
25/01/99, Patterson J, HC Auckland AP216/98.
Are the infringement fees mandatory fines?
The leading decisions on whether infringement fees are mandatory fines are Interfreight Ltd v Police and Osment v Police In the light of these decisions, our view is that the infringement fees specified in the Regulations are not mandatory and that the Court has discretion to impose a fine of a lesser amount than the prescribed fee because:
(a) the reminder notice in the Summary Proceedings Amendment Regulations 1999, Form 10, does not include a note relating to RMA offences which is similar to the note on overloading offences
(b) submissions can be made on the penalty.
Case example D
Interfreight Ltd v Police
The Court of Appeal held that overloading infringement fees set out in Part III of the Second Schedule of the Transport Act 1962 are mandatory for the following reasons.
(a) Section 69B(2)(b) of the Transport Act states what the penalty for an overloading offence shall be. Prima facie it lays down a mandatory penalty. Section 69B(2)(b) provides: “The penalty for the offence shall be the appropriate overloading infringement fee or the total of those fees calculated in accordance with Part III of the Second Schedule of this Act.”
(b) The reminder notice includes the note:
NOTE: If the offence alleged against you is an OVERLOADING OFFENCE, you should not make written submissions as to penalty as the penalty for the offence is fixed and may not be reduced by the Court.
The Court of Appeal rejected the argument that the defendant’s right to request a hearing is futile if the defendant cannot challenge the penalty. The Court of Appeal held s 21 of the SPA is a general provision.
The specific provision in s 69B(2)(b) overrides the general provision in s 21. The Court held that the option in the summary of rights in the infringement notice to make submissions as to the offence is to allow the defendant an opportunity to challenge the calculation of the infringement fee or to contend that the overloading was not to the extent alleged.
[1997] 3 NZLR 688 (CA).
Case example E
Osment v Police
The High Court held that the infringement fees for excess weight offences and distance recorder offences are not mandatory because:
(a) an excess weight offence is not an “overloading offence” as defined in s 69B of the Transport Act
(b) the Police do not have to use the infringement procedure for excess weight offences (the Police have to use the infringement procedure for overloading offences under s 69B of the Transport Act)
(c) the question of penalty is open to submission.
11/09/98, Laurenson J, HC Rotorua AP65/98.
Costs
Defendant to pay costs
SPA s 21(9) and reg 15C of the Summary Proceedings Regulations 1958 say:
The Court must order the defendant to pay a prescribed fee, which is currently set at $30, if:
(a) the defendant admits liability and the local authority requests a hearing
(b) the defendant does not admit liability and requests a hearing, and the Court finds the defendant guilty.
Local authority to pay costs
If the Court finds the defendant not guilty, the Court can order the local authority to pay costs. Section 21(8) of the SPA provides that if the notice of hearing is filed within six months of the date of the offence, the Costs in Criminal Cases Act applies.
Points to watch
Police v Ellis
The defendant, Mrs Ellis, was issued with an infringement notice about 41 days after the date of the alleged offence. The defendant’s husband, who is a barrister, wrote to the Police about one week after the issue of the reminder notice and asked the Police to withdraw the infringement notice.
Mr Ellis told the Police that the 41-day delay between the date of the offence and receipt of the notice by Mrs Ellis was too long and potentially prejudicial to her defence because: “ It is hard to recall if you were speeding and if you have a defence that long ago, e.g. you accelerated out of the way of a potential accident, Police or other emergency vehicle”.
Mr Ellis referred the Police to decisions where the Court has dismissed infringement notice proceedings because of delays.
The Police replied with a letter which the Judge described as “a knee-jerk standard response generated by computer, rather than a considered reply dealing with the quite proper concerns raised by Mr Ellis”. The letter from the Police stated:
Please be assured that your letter has been read in full and has been given due consideration. It has been decided that the notice should not be waived in this instance.
A notice of hearing was issued by the Police and the proceedings were adjourned, once by consent and on the second occasion despite Mr Ellis’s objection. Mr Ellis provided the prosecution with lengthy legal submissions. The Judge said:
It has indeed been something of a revelation to consider the body of jurisprudence which has built up in recent years on the topic of speeding offences.
By 30 May a further eight pages of closely reasoned additional submissions had been prepared in readiness for the hearing. On 30 May, however, the expected confrontation failed to take place. The prosecution tamely sought and was granted leave to withdraw the charge. Not a shot was fired in anger and, in particular, the challenge to the speed camera regime was not resolved.
The Police withdrew the charge because they discovered an error in the reminder notice: there was no identifying name or officer identification number on the notice.
Mr Ellis applied for costs of $5,000 plus $146 disbursements against the Police. Section 5(1) of the Costs in Criminal Cases Act provides that where an information is withdrawn, the Court may order that the defendant be paid such sum as it thinks just and reasonable towards the cost of his/her defence.
There is no presumption for or against granting of costs. The Judge considered the circumstances in s 5(2) to which the Court shall have regard in deciding whether to grant costs and in what amount. The Judge found that a costs award was justified.
Section 13(3) of the Costs in Criminal Cases Act allows the Court to exceed the maximum scale of costs if it is satisfied, having regard to the special difficulty, complexity or importance of the case, payment of greater costs is desirable. The Judge considered that the case was neither difficult nor complex, nor was it of any special importance as far as criminal law is concerned. The Judge ordered the Police to pay costs according to the scale of fees payable under the Costs in Criminal Cases Regulations 1987 of $678 plus disbursements of $146.
31/07/97, Judge Dalmer, DC Wellington CRN 6085009178.
Recovery of fine and costs
Notice of fine
The Court registrar will send notice of the fine to the defendant. The defendant has 28 days after the date the fine is imposed to pay the fine (SPA section 80).The Court can allow further time for payment and payment by instalments.
Further notice
If the defendant has not paid the fine 21 days after the date the fine is imposed, and if the Court has not made an order extending the time within which the defendant has to pay the fine or allowing payment by instalments, the Court registrar will send the defendant a further notice of the fine informing the defendant that if the fine is not paid within 28 days after the date on which it was imposed, and no arrangement has been entered into for an extension of time or for payment by instalments, enforcement action may be commenced.
Enforcement action
If the defendant does not pay the fine, the registrar may issue a warrant to seize property, or make an attachment order attaching any salary or wages payable or to become payable to the defendant, or issue a deduction notice requiring a bank to deduct the amount due from a sum payable or to become payable to the defendant (SPA section 87).
A Court bailiff executing a warrant to seize property may, instead of seizing any motor vehicle, immobilise the vehicle pending payment of the unpaid fine (SPA section 94B).
Is GST payable on infringement fees?
Infringement fees are not subject to GST. The Inland Revenue Department position on the GST treatment of fines and penalties, as set out in the Technical Rulings Manual, is:
Section 2 of the Crimes Act 1961 defines an offence as “any Act or omission for which anyone can be punished under this Act or under any other enactment, whether on conviction or indictment or summary conviction”. Its relevance in the context of GST is that where a penalty is chargeable in respect of the commission of an offence, the penalty will not be subject to GST.
Thus, any punishment imposed by statute, or by a schedule to a statute, or under bylaws created by statute, will be in respect of an offence, and if a fine is levied, will not be subject to GST.
Alternatively, the test could be expressed as whether there is any taxable supply passing from the person upon which the fine or penalty has been imposed. There will be many local variations in the way in which penalty-type charges are assessed. The test to be applied as to whether they are taxable consideration is whether or not they are penalties imposed for offences created by statute.
The first paragraph of the above excerpt from the Technical Rulings Manual is arguably not applicable to infringement fees, because no conviction is imposed for an infringement offence. The second and third paragraphs of the excerpt are clearly applicable to infringement fees.
Advantages and disadvantages of infringement notices
The advantages of the infringement notice procedure are that it is swift, efficient and inexpensive unless challenged. The only disadvantage is that the procedure can become expensive if the defendant requests a hearing and either does not admit liability or raises one of the defences as set out in clause 8 in the summary of rights.
Statistics
The Ministry for the Environment’s Two-yearly Survey of Local Authorities 2003/04 shows that 80 local authorities issued 1,157 infringement notices in the 2003/04 period. Eighty-five local authorities issued 620 infringement notices in 2001/02. Of the 1,157 infringement notices issued in 2003/04, 194 were not proceeded with and 21 were appealed. The remainder were either paid or are still in progress.
Infringement offence procedure
The following summary of the infringement offence procedure is adapted from a chart kindly provided by Waitakere City Council. The prescribed forms for an infringement notice, reminder notice and notice of hearing are set out in the appendices.
Step1 |
Notice Issued – 28 days to pay | |||
|---|---|---|---|---|
1a |
Fee paid |
No further action. |
|
|
1b |
Defendant raises circumstances |
No further action or |
|
|
1c |
Hearing requested, liability admitted submissions. |
Reminder notices, Form 10 of SP Regulations lodged at Court with defendants notice admitting liability. |
To judge in chambers |
Order to pay |
1d |
Hearing requested – liability denied |
Reminder notices, Form 10 of SP Regulations lodged at Court, serve copy on defendant |
Defended hearing |
If guilty Order to Pay. Or not guilty |
1e |
No response |
Step 2 |
|
|
1f |
Defendant requests payment by instalments |
Informant agrees to payment by instalments; or informant does not agree to payment by instalments = step 2 |
Instalments until paid in full – step 2 if default or enter into another arrangement to pay by instalment. Defendant cannot request a hearing if arrangements entered into to pay by instalments. |
|
1g |
Defendant raises s341 and/or s340(2) defence |
No further action, or step 2. |
|
|
Step 2 | Reminder Notice Issued – 28 Days to Pay |
|||
2a |
Fee paid |
No further action |
|
|
2b |
Defendant raises circumstances |
No further action; or |
|
|
2c |
Hearing requested – liability admitted – submissions to Court. |
Reminder Notice, Form 10 SP Regulations lodged at Court with defendant’s notice admitting liability. |
To judge in Chambers |
Order to pay |
2d |
Hearing requested – liability denied |
Reminder Notice, Form 10 SP Regulations lodged at Court – serve copy on defendant |
Defended hearing |
Guilty = order to pay, Or Not Guilty |
2e |
No response |
Step 3 |
|
|
Step 3 |
Reminder Notice, Form 10 SP Regulations |
|||
3a |
Collections recover fee and enforcement costs |
No Further Action |
|
|
3b |
Application by defendant under section 78B of the Summary Proceedings Act |
To Judge in chambers |
Order set aside Order modified Hearing or rehearing granted Local Authority directed to reserve notice Order as to costs |
Defended hearing |
Appendices
Appendix A: Form of Infringement Notice (Word document 29KB)
Appendix B: Form SP10 Reminder Notice (Word document 35KB)
Appendix C: Form SP10A Notice of Hearing (Word document 29KB)
