Attorney-General (on behalf of the Ministry of Justice) v North Shore District Court HC Auckland CIV 2007 404 1345

[2007] NZHC 2026

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2007 404 001345

UNDER  the Judicature Amendment Act 1972

IN THE MATTER OF     Summary Proceedings Act 1957 section 96

BETWEEN  ATTORNEY-GENERAL (ON BEHALF OF THE MINISTRY OF JUSTICE) Applicant

ANDNORTH SHORE DISTRICT COURT First Respondent

ANDJAMES ALLAN CAMPBELL Second Respondent

ANDBRETT STUART Third Respondent

Hearing:         29 March 2007

Counsel:         Lana Hamilton for Applicant

No appearance First Respondent (abiding decision)

No appearance Second and Third Respondents (abiding decision) Judgment:  23 August 2007 at 11:00am

RESERVED JUDGMENT OF WILLIAMS J

This judgment was delivered by

Hon. Justice Williams on

23 August 2007 at 11:00am

pursuant to R 540(4) of the High Court Rules

……………………………..

Registrar/Deputy Registrar

Date: ……………………...

ATTORNEY-GENERAL V NORTH SHORE DISTRICT COURT AND ORS HC AK CIV 2007 404 001345

23 August 2007

AThere will be a declaration that claims to property seized, brought under the Summary Proceedings Act 1957 s 96, should be dealt with by the District Court in its criminal jurisdiction.

B        There  will  be  a  declaration  that  the  orders  of  the  District  Court  of

15 September 2006 relating to payment of $243.00 to each of the second and third respondents for loss of wages and $100.00 to the second respondent for costs of the repair  to  the  boat  trailer  damage  in  the course of executing the warrant be quashed.

C        The costs of the application to lie where they fall.

Issue

[1]      The Attorney-General has issued this claim for judicial review seeking, in the factual circumstances later outlined, declarations that decisions relating to claims to seized property under the Summary Proceedings Act 19571  s 96 must be dealt with by the District Court in its summary criminal jurisdiction and do not include power to grant compensation to third parties or to applicants for alleged loss resulting from seized property.

[2]      The proceeding has followed a somewhat unusual course in that all three respondents indicated they intended to abide the decision of the Court though, in the District Court’s case, with the reservation of its rights in the event of costs being sought and, in the case of the second and third respondents, on the basis of their solicitors saying that “neither of these young lads have the resources, or inclination, to contest these proceedings”.  They, too, reserve their position in relation to costs.

[3]      Further, on 7 May 2007, counsel for the North Shore District Court suggested in a memorandum that because the Solicitor-General has a general interest in the role and functions of bailiffs and the respondents were not well placed to assist, the Solicitor-General offered to nominate counsel to assist the Court as amicus curiae. By Minute issued on 1 June 2007 when the Solicitor-General’s Minute was referred to Williams J, the proposal was agreed and counsel for the first respondent was invited to nominate persons who might be so appointed.  Nothing appears to have

transpired since that date and this judgment is delivered on the assumption  the proposal was abandoned by the Solicitor-General.

[4]      However,  despite  the  lack  of  assistance  from  counsel  for  any  of  the respondents, the amounts in issue are, as will be seen, modest and because of that and because the result seems relatively clear-cut, it is appropriate to deal with the matter on the statement of claim, and the supporting affidavit plus a transcript of the brief evidence given in the North Shore District Court on 15 September 2006.  That was furnished on 13 June 2007 (following a Minute to counsel of 4 April 2007).  It seems virtually certain that no other material evidence could be adduced, there is no prejudice to any of the parties in so proceeding and it is in the interests of justice to bring this matter to an end with little further expenditure of resources.

Facts

[5]      On  21  November  2005  a  Mr  Dale  Vivian  Kakuere Campbell  apparently failed  to  produce  his  driver’s  licence  when  stopped  in  Auckland  City  and  on

31 January 2006 a fine of $85.00 was imposed on him in respect of that offence.  His address was given as 9 Sunburst Lane, Torbay Heights, North Shore.

[6]      It appears Mr D V K Campbell did not pay the fine and on 20 July 2006 a Deputy Registrar of the North Shore District Court issued a warrant under s 87(1)(a) empowering the court bailiff to seize his property.  The warrant was, however, for the total sum of $5580 (and the warrant was endorsed by some person “total outstanding $5910”) being an enforcement fee ($1600) and “amount unpaid $3980”. How an $85.00 fine ballooned into an “amount unpaid $3980” in under six months does not appear from the evidence, but it may be Mr D V K Campbell had other fines which were not listed in the warrant.  If he seized a motor vehicle, the warrant authorized the bailiff to “in the first place immobilise the vehicle by attaching to the vehicle any device designed for that purpose”.

[7]      On 24 July 2006 the bailiffs went to 9 Sunburst Lane, Torbay Heights, North

Shore, Mr D V K Campbell’s address shown on the warrant.  Neighbours told them

1    All statutory references in this judgment are to the Summary Proceedings Act 1957.

it was the Campbell residence though the property was unoccupied throughout their visit.   It now appears that the mother of Mr D V K Campbell and the second respondent, Mr James Allan Campbell, occupied the house.   She is Mrs Terri Campbell.  Mr J A Campbell formerly lived there but was living elsewhere in July

2006.  The neighbours apparently told the bailiff that Mr D V K Campbell was also living at the address at the time of their visit.

[8]      Acting on the neighbours’ advice, the bailiffs seized a 16 foot Fyran “tinny” boat, a 40 hp Mariner outboard motor, boat trailer registration number 56117 and an anchor and warp, removed the items to safe keeping but noting that:

“there was some minor difficulty in loading the trailer as there was a wheel clamp attached to L/H side of the trailer however no physical damage was noticed during the loading procedure.”

[9]      The bailiffs left on the property the notice required by s 94(4).

[10]     Having heard nothing from the occupants of 9 Sunburst Lane, the bailiffs left a further notice on 28 July and, later that day, were telephoned by Mrs Campbell who, according to the bailiffs’ report, acknowledged the boat belonged to Mr D V K Campbell.

[11]     On 2 August 2006 a solicitor acting for Mrs T and Mr J A Campbell wrote to the North Shore Court saying the items seized belonged to Mr J A Campbell and were stored at the property with his mother’s agreement.   The letter asserted the parties involved had lost work time through attendances at the Court to prove ownership of the items seized and that neither Mrs T nor Mr J A Campbell owed outstanding fines.  The letter asserted that the bailiffs “demanded payment of $500 for the matter to be investigated further”, sought immediate return of the items seized and “compensation for the wheel lock damage in the course of the illegal seizure”.

[12]     That was followed by a formal application dated 11 August 2006 by Mr J A Campbell for the return of his property, compensation for damages, a refund of the

$500 “which I had been required to pay into Court before the application for the return of my property would be considered” and asserting he was the lawful owner of all the items and owed no fines “with the exception of one in respect of which I

am paying off in accordance with an agreed programme”.  Supporting affidavits by Mr J A Campbell and the third respondent in this case, Mr Stuart, exhibited documents showing Mr Stuart sold the items to Mr J A Campbell on 13 January

2006 for $7000, which had been fully paid although the notice of change of ownership of the trailer had not been registered.  Mr J A Campbell said his brother, Mr D V K Campbell, had no interest in any of the items seized.

[13]     The Court application nominated s 96 as the statutory provision under which it was brought.

[14]     The Registrar reported to a Judge under s 88(1)(c) with copies of Mr J A Campbell’s  application  and  affidavits  attached.    On  14  August  2006,  a  Judge directed that summonses issue.  The summonses were issued on 15 August 2006 and served on Mr J A Campbell and Mr Stuart on 22 and 21 August respectively.

[15]     On 23 August 2006 a Registrar sought a Judge’s directions concerning the future conduct of the application.  The Judge directed that the case be adjourned for “evidence” and argument “probably in a civil list or interlocutory day”.  That led to Mr J A Campbell filing a formal interlocutory application (and paying a filing fee of

$185) against the bailiff of the North Shore District Court and seeking release of the items seized, refund of the $500 security set under s 96(1)(b) and compensation for damage caused at the time of seizure.   The application was again supported by affidavits filed by Mr J A Campbell and Mr Stuart.

[16]     Counsel was then instructed to act for the Registrar and bailiff.  The letter of instruction of 12 September 2006 said that the “Court’s Collections staff do not dispute [Mr J A Campbell’s] claim to the seized property” and suggested counsel endeavour to settle the matter with the applicant’s solicitor with a view to obtaining consent orders that the seized property be returned to the applicant together with a refund of the $685 he had paid, but resist any claims for compensation or costs under s 102.  The letter of instruction noted, correctly, that “through a misunderstanding, the claim has been filed as a civil interlocutory application and set down in the Court’s civil list”.

[17]   Counsel was unsuccessful in settling the matter and therefore filed a Memorandum properly submitting to the District Court Judge that the direction that the application be dealt with in the Court’s civil jurisdiction was incorrect as s 96 requires  claims  to  seized property to  be  dealt  with  in  the  criminal  jurisdiction. Section 96 reads:

96     Claims to property seized

(1)Where a claim is made by a person other than the defendant in respect of property seized under a warrant to seize property, the claimant may—

(a)      Deposit with the Registrar the amount determined by the

Registrar as being the value of the property claimed; or

(b)      Give the Registrar such security as the Registrar may require for the value of the property claimed,—

pending the decision of a District Court Judge upon the claim.

(2)Where a claimant fails to comply with paragraph (a) or paragraph (b) of subsection (1) of this section, the property may be sold as if no such claim had been made and the proceeds of the sale shall be held to abide the decision of a District Court Judge upon the claim.

(3)Where a person other than the defendant has made a claim in respect of property seized under a warrant to seize property, or in respect of the value of the property or the proceeds of its sale, the Registrar shall issue a summons calling the defendant and the claimant before a District Court Judge and,  in that  event,  any action  brought in respect of the claim shall be stayed.

(4)On  the  hearing  of  the  summons,  the  District  Court  Judge  shall adjudicate upon the claim and shall make such order in respect of the claim and the costs of the proceedings as the Judge thinks fit.

[18]    Counsel submitted that s 96 gave the Court no power to order costs or compensation as subs (4) did not empower the ordering of costs to a third party.  He referred the Judge to Delta Transport (1995) Ltd v Palmerston North District Court (M85/98 7 March 2001) where McGechan J determined the scope of the relevant statutory provisions in the following passage (p 6 para [13]):

I accept s 96 required the District Court to determine claims made in respect of the property – i.e. claims to possessory and “equitable” interests in the property pursuant to hire purchase agreements.   That is apparent both on wording and on policy.  Section 96(1) postulates a situation “where a claim is made .. .in respect of property seized …”.  That could only be a claim to an interest in the property.  Section 96(4) requires the District Court Judge to

“adjudicate upon the claim”.  The Judge is to decide it.  I do not think the added words directing the Judge to make such order as “the Judge thinks fit” enlarge that authority into some wider palm tree jurisdiction.  There is not an express power based on “equity and good conscience” or the like.   The object of s 96 (and indeed s 97) is to enable persons who have a legally recognised interest in property seized under warrants to obtain protection for that interest.   It is particularly necessary given the s 93(1) power to seize property “apparently” that of the fine defaulter defendant.  Obviously items not truly belonging to the defaulter could get caught up.

(followed in Otago Finance Ltd v Dunedin District Court (HC Dunedin CP1/02, 30

October 2002, Panckhurst J, para [35]).

[19]     Counsel went on to submit that the bailiff should not have been named as the defendant in proceedings as both the bailiff’s and the Registrar’s actions were protected by s 102:

102      Protection of Registrar, bailiff, etc

No Registrar and no bailiff, constable or other officer shall be personally liable for  any act  done or  omitted  in  good  faith  in  the  performance  or purported performance of any power or function under this Act relating to the immobilisation of any vehicle or to the seizure of property or its subsequent disposal.

[20]     When the application  came  on  for  hearing on  15  September  2006,  brief evidence – extending to less than one page of transcript – was called from Mr J A Campbell.  He said he and Mr Stuart were paid $27 an hour and apparently – the exhibit was not available in this Court – produced a letter from their employer certifying “basically just the time we had off work for this matter”.

[21]     In  a  decision  dated  15  September  2006  but  possibly  only  delivered  on

20 September, the Judge held:

[3]       While the application sought compensation, I accept the submission of Mr Wimsett that these proceedings under the Summary Proceedings Act have a criminal nature and that any compensation claim could not be brought against the defendant in his personal right because he would be protected by the warrant issued by the Court from civil liability.

[4]       In substance however the application really is under s 96 of the Summary Proceedings Act 1957.  Under that Act I have certain powers to adjudicate upon the claim and make such order in respect of the claim and costs of the proceedings as I think fit.  Obviously a discretion like that has to be exercised judicially.

[5]       I am advised that the boat, trailer and other assets of the plaintiff are held in storage and that the Ministry of Justice intends to pay the storage fees.   I determine that the boat, outboard motor, trailer, anchor and warp referred to above belong to Mr James Allan Campbell and I direct that those assets be released to him forthwith.

[6]       There is an application for costs.  Although this was stated on a 1A basis, a determination which would be appropriate were this a civil case, it seems to me in the case of a perfectly innocent man who has had this assets seized that he should not be out of pocket.  Accordingly, I direct the Ministry of Justice to pay the sum of $800 to Mr Campbell for his costs;   that the filing fee of $185 be released to him;  and that the deposit of $500 that he paid to this Court pursuant to s 96 of the Act be returned to him.

[7]       In respect of the costs award it is thought appropriate to make an award in this case in that Mr Campbell was at all times the owner in equity and in law of the property that was seized.  Mr Campbell says he understood the bailiff’s target for unpaid fines was his brother and he deposes that that brother has no interest in the items that were seized.

[8]       I record that I have evidence from Mr Campbell that both he and Brett Stuart have lost nine hours each of work time at $27 an hour.  I take the view that I can make such order in respect of the claim as I think fit.  They should never have been put in the position of having to make this application which  was  at  all  times  wholly justified.    Accordingly,  I direct  that  the Ministry of Justice is to pay to Mr Brett Stuart and Mr James Campbell the sum of $243 each for loss of wages.

[9]       I am advised that the trailer probably would have been damaged because of the need to release a wheel clamp on it.  The best information I have about the repair costs of that would be the sum of $100.  I direct that that sum is also to be paid to Mr James Campbell by the Ministry of Justice.

The Claim

[22]     The  application  for  judicial  review  asserts  that  the  direction  given  on

23 August 2006 for Mr J A Campbell’s application to be heard in the Court’s civil jurisdiction was a statutory power of decision under the District Courts Rules 1992

R 432 and was in error since, under s 96, such applications are required to be made in the criminal jurisdiction.

[23]     The second error of law was said to be the directions of the District Court Judge on 15 (or 20) September 2006 requiring the Ministry of Justice to pay Mr J A Campbell’s out of pocket costs of $800, the loss of wages incurred by the second and third respondents of $243 each and the $100 repair costs to the boat trailer.  Those orders, too, were said to be the exercise of a statutory power of decision under s 6(4) and to be incorrect in going beyond the empowering provisions of that section.

Discussion and Decision

[24]     There can be no doubt that, as the District Court now acknowledges, the subject of the fines warrant, Mr D V K Campbell, has never had any interest, legal or otherwise, in the goods seized by the bailiffs on 24 July 2006.   Accordingly, the Judge was right to order the return of those goods to Mr J A Campbell and the Ministry of Justice was right to acknowledge that it should bear the storage fees for them.

[25]     There is similarly no doubt that when the dispute arose as to the ownership of the seized items, it had to be resolved by invocation of the statutory provision expressly enacted for that purpose, s 96, and that it was in error for Mr J A Campbell’s application to be dealt with in the District Court’s civil jurisdiction.  It is true that the Judge’s direction in that regard was not clear-cut but, since it was treated  by the  Registrar  and  the  parties  thereafter  as  directing  trial  in  the  civil jurisdiction, and the error was rectified by the Judge treating Mr J A Campbell’s application on 15 September as made under s 96 and proceeding that basis, nothing further hangs on that as far as the present proceedings are concerned.   It must be said, however, with respect, that in his anxiety to do what he saw as justice between the parties, the Judge went beyond both the terms of s 96 and the authorities under that section plus the terms of the application and supporting affidavits and evidence.

[26]   In addition, as Ms Hamilton, counsel for the applicant said in helpful submissions at the hearing and those filed on 31 May 2007 , the judgment may have overlooked the provisions of the Crown Proceedings Act 1950 s 6(5) which reads:

(5)       No proceedings shall lie against the Crown by virtue of this section in respect of anything done or omitted to be done by any person while discharging  or  purporting  to  discharge  any  responsibilities  of  a  judicial nature vested in him, or any responsibilities which he has in connection with the execution of judicial process.

[27]     It is clear under Delta Transport and Otago Finance that s 96 does not confer an unfettered discretion on Judges deciding applications brought under the section. Otago Finance contains a helpful review of the contrasting approaches of the District Court to s 96 applications up to delivery of that judgment.  Delta Transport makes

clear that the purpose of s 96 applications is to enable the Court to adjudicate as between competing legal interests on property seized under warrants.

[28]     There is accordingly no basis in law for the Judge to make the orders for loss of wages or repair costs in the present case.

[29]     Even had that not been the case, though Mr Campbell’s solicitor’s letter of claim spoke of the “affected parties” losing work time in their discussions with the District Court, no such claim appeared either in the application or the supporting affidavits.  It appears only to have arisen in the brief evidence Mr J A Campbell gave at the fixture.  It is also noteworthy that, though served with the papers, Mr Stuart was not a party to the application heard on 15 September 2006.   Accordingly, not only was there no legal basis for ordering the payment of lost wages to Messrs J A Campbell and Stuart, but there would appear to have been no procedural basis for the order in the latter’s favour.

[30]     Similarly, although the claim letter forecast a claim for compensation for the damaged wheel lock, the affidavits and evidence omitted all reference to that item and provided no detail of the cost of repairing the suggested damage.  It must follow, again, that there was neither a legal nor a factual basis for the order relating to the trailer repair costs.

[31]     There was accordingly no jurisdiction or evidential basis for the Judge’s orders that the second and third respondents be paid $243 each for loss of wages or

$100 for the repair costs to the trailer.

[32]     The judicial review proceedings also seek an order rescinding the District Court Judge’s order for the payment by the Ministry of Justice to Mr J A Campbell of $800 which was said to be “out of pocket” costs.  However, a close reading of the

15 September decision suggests those were the costs of the proceeding which would come within s 96(4) and not the “out of pocket” costs.  If so, they would come within the terms of the subsection and the cases to which reference was earlier made. Counsel appeared for Mr J A Campbell on 15 September 2006.  No ground has been made out for rescinding the costs order by way of judicial review.

[33]     Though rather lost from sight in this matter, if Mr J A Campbell’s security of

$500.00 has not been repaid to him, that should occur.  Arguably, too, he should not have had to pay the $185.00 filing fee to vindicate his rights.   As a gesture of goodwill, the Ministry should consider refunding that sum.

Result

[34]     In the result:

a)       There will be a declaration that claims to property seized brought under the Summary Proceedings Act 1957 s 96 should be dealt with by the District Court in its criminal jurisdiction.

b)       There will be a   declaration that the orders of the District Court of

15 September 2006 relating to payment of $243 to each of the second and third respondents for loss of wages and $100 to the second respondent for costs of the repair to the boat trailer damage in the course of executing the warrant be quashed.

c)       In the circumstances it would not be appropriate to order costs either way.  The costs of the application are to lie where they fall.

………………………………..

WILLIAMS J

Solicitors:

Crown Solicitor, P O Box 2213 Auckland, for applicant

‘Email:   [email protected]

Crown Law Office (Peter Gunn), P O Box 2858 Wellington

Email:  Pete[email protected]

Coupe Davidson Sweetman, P O Box 33-564 Takapuna, for 2nd and 3rd Respondents

Email:  [email protected]

Turner Hopkins (Michael Robinson), P O Box 33 237 Takapuna

Email:   [email protected]

Copy for:

Barrie Hopkins, P O Box 106 027 Auckland, for Mrs Terri Campbell

Email:   [email protected]

Roger Howard, Office of Legal Counsel, Ministry of Justice

P O Box 180 Wellington (Email:   roge[email protected]z) Judge David Wilson QC, District Court.

Wendy Pukeiti, Case Registry Officer, Auckland High Court

Email:  Wendy[email protected]