78B Power to correct irregularities in proceedings for infringement offences

(1)

This section applies if a defendant is deemed to have been ordered, or is ordered, to pay a fine or costs or both under section 21 and—

(a)

a District Court Judge or Registrar, on the application of the defendant, is satisfied on the basis of information provided with the application that—

(i)

the defendant is not a person to whom the infringement notice was issued or on whom the notice is deemed to have been served; or

(ii)

the defendant (not being a defendant who, under section 78C(1) or (3), is ineligible to rely on this ground) did not in fact receive the reminder notice required to have been served on the defendant under section 21; or

(iia)

the defendant did not in fact receive a copy of the notice of hearing required to have been served on the defendant under section 21; or

(iii)

some other irregularity occurred in the procedures leading up to the order for the fine or costs, or both; or

(iv)

the defendant believed on reasonable grounds that he or she had requested a hearing under section 21, but this request was not acted on by the informant; or

(v)

the defendant reasonably believed that he or she had been advised by the informant that action would not be taken under section 21(3); or

(vi)

the defendant reasonably believed that he or she had been advised by the informant that further time for requesting a hearing would be allowed under section 21(6)(b), but action was taken under section 21(3) before that further time had expired; or

(vii)

the defendant—

(A)

had, in writing, requested further relevant information from the informant in relation to the infringement offence; and

(B)

had made the request within a time that would reasonably enable the informant to respond before the earliest time at which the informant would be entitled to take action under section 21(3); and

(C)

believed on reasonable grounds that the informant had not refused to provide the requested information and that action would not be taken under section 21(3) before that information had been provided; and

(D)

was not provided with the information before action was taken under section 21(3); or

(viii)

the defendant paid the infringement fee to the informant at the address specified in the infringement notice before or within 28 days after service on the defendant of a reminder notice in respect of the offence to which the notice relates; or

(b)

the informant applies to a District Court Judge or Registrar to withdraw the reminder notice filed or deemed to have been filed under section 21.

(1A)

No more than 1 application, made in reliance on the ground stated in subsection (1)(a)(ii), may be granted in respect of the same defendant for the same infringement offence.

(1B)

An application under subsection (1) may be made—

(a)

in writing in a form approved under section 209A; or

(b)

electronically in a manner approved by the chief executive of the Ministry of Justice.

(1C)

An application under subsection (1) may be—

(a)

made to any court; and

(b)

considered in another court besides the one to which it is made.

(2)

The Judge or, subject to subsections (3) and (4), the Registrar may do 1 or more of the following:

(a)

authorise the informant to serve a reminder notice on a person other than the defendant (being a person to whom the infringement notice was issued or on whom it was deemed to have been served):

(b)

authorise the informant to serve on the defendant another copy of the reminder notice or the notice of hearing and, for that purpose, require the defendant to specify an address at which personal service, service by post, or service by either method may be effected:

(c)

grant a hearing or rehearing of the matter, and proceed with the hearing or rehearing immediately if both parties agree, or set it down for a later date:

(d)

set aside or modify the order:

(e)

make any other order as to costs or otherwise that the Judge or Registrar considers appropriate in the circumstances.

(3)

If a Registrar considering an application under subsection (1)(a) is satisfied that any of subparagraphs (i) or (iv) to (vii) of subsection (1)(a) apply, the Registrar must not exercise the power conferred by subsection (2)(a) or (b) except with the consent of the informant.

(4)

A Registrar may not exercise the power conferred by subsection (2)(d) except where the application is made under subsection (1)(a)(viii) or (1)(b).

(4A)

A Judge or Registrar must deal with an application under subsection (1) on the papers unless the Judge or Registrar considers that a hearing is necessary.

(4B)

While an application under subsection (1) is pending,—

(a)

no warrant, order, or notice may be issued or take effect to enforce the order to which that application relates; and

(b)

the Registrar must take appropriate steps to ensure that the order is not acted on.

(4C)

Despite subsection (4B), if, before an application under subsection (1) is made, any property has been seized under a warrant to seize property to enforce the order to which that application relates,—

(a)

any seized property that has not been sold, assigned, applied, released, or otherwise disposed of must be retained under section 100B(3) while the application is pending; or

(b)

if the seized property has been sold but the proceeds of sale have not been applied in accordance with section 100N or 100R, the proceeds must be retained while the application is pending.

(4D)

If the order to which the application relates continues in effect after the application is determined or is discontinued, the property must be dealt with, and any fees and costs payable under an enactment in respect of the property are payable, as if the application had not been made.

(4E)

If, on the determination of the application, the order is set aside or ceases to have effect in accordance with subsection (5), the owner—

(a)

is entitled to—

(i)

the return of the property if the property has been retained in accordance with subsection (4C)(a); or

(ii)

the proceeds of any sale if the proceeds have been retained in accordance with subsection (4C)(b); and

(b)

is not liable for any fees and costs payable under an enactment in respect of the property.

(4F)

In any case where a Judge or Registrar gives a direction authorising the service of a reminder notice or a copy of a reminder notice under subsection (2)(a) or (b) (a new reminder notice) in replacement of, or by reference to, a previous reminder notice, then—

(a)

section 21(3)(b), (3D)(b), and (10)(a), if applicable to the case, apply as if the reference to the date of service of the reminder notice were a reference to the date of the direction by the Judge or Registrar; and

(b)

section 21(3B), (5)(a), (5A)(a), and (8)(d), if applicable to the case, apply as if the reference to the time when the offence is alleged to have been committed were a reference to the date of the direction by the Judge or Registrar.

(4G)

If, under subsection (2)(b), a Judge or Registrar authorises the informant to serve on the defendant a new reminder notice, the defendant may not give notice requesting a hearing in respect of the infringement offence to which the notice relates if the Registrar is satisfied that the notice was filed following the defendant’s default in paying 1 or more instalments under an arrangement entered into under section 21(3A) or (3C)(a).

(4H)

If, under subsection (2)(d), an order is set aside following an application made by the informant under subsection (1)(b), the setting aside is not a bar to any other proceedings in the same matter.

(5)

If a Judge or Registrar exercises a power under subsection (2)(a), (b), or (c), the order made or deemed to have been made against the defendant ceases to have effect and the Registrar must take appropriate steps to ensure that the order is not acted on.

(6)

If a defendant granted a hearing or rehearing under this section does not appear, the court may, if it thinks fit, without hearing or rehearing the matter, direct that the original order be restored.

Section 78B: replaced, on 9 October 2006, by section 9 of the Summary Proceedings Amendment Act 2006 (2006 No 13).

Section 78B(1)(a): amended, on 1 August 2012, by section 8(1) of the Summary Proceedings Amendment Act 2011 (2011 No 32).

Section 78B(1)(a)(ii): replaced, on 1 August 2012, by section 8(2) of the Summary Proceedings Amendment Act 2011 (2011 No 32).

Section 78B(1)(a)(iia): inserted, on 1 August 2012, by section 8(2) of the Summary Proceedings Amendment Act 2011 (2011 No 32).

Section 78B(1)(a)(viii): inserted, on 1 August 2012, by section 8(3) of the Summary Proceedings Amendment Act 2011 (2011 No 32).

Section 78B(1A): inserted, on 1 August 2012, by section 8(4) of the Summary Proceedings Amendment Act 2011 (2011 No 32).

Section 78B(1B): inserted, on 1 August 2012, by section 8(4) of the Summary Proceedings Amendment Act 2011 (2011 No 32).

Section 78B(1C): inserted, on 1 August 2012, by section 8(4) of the Summary Proceedings Amendment Act 2011 (2011 No 32).

Section 78B(2)(c): amended, on 1 August 2012, by section 8(5) of the Summary Proceedings Amendment Act 2011 (2011 No 32).

Section 78B(4): replaced, on 1 August 2012, by section 8(6) of the Summary Proceedings Amendment Act 2011 (2011 No 32).

Section 78B(4A): inserted, on 1 August 2012, by section 8(6) of the Summary Proceedings Amendment Act 2011 (2011 No 32).

Section 78B(4B): inserted, on 1 August 2012, by section 8(6) of the Summary Proceedings Amendment Act 2011 (2011 No 32).

Section 78B(4C): inserted, on 1 August 2012, by section 8(6) of the Summary Proceedings Amendment Act 2011 (2011 No 32).

Section 78B(4D): inserted, on 1 August 2012, by section 8(6) of the Summary Proceedings Amendment Act 2011 (2011 No 32).

Section 78B(4E): inserted, on 1 August 2012, by section 8(6) of the Summary Proceedings Amendment Act 2011 (2011 No 32).

Section 78B(4F): inserted, on 1 August 2012, by section 8(6) of the Summary Proceedings Amendment Act 2011 (2011 No 32).

Section 78B(4G): inserted, on 1 August 2012, by section 8(6) of the Summary Proceedings Amendment Act 2011 (2011 No 32).

Section 78B(4H): inserted, on 1 August 2012, by section 8(6) of the Summary Proceedings Amendment Act 2011 (2011 No 32).