Attorney-General v District Court at Christchurch
[2017] NZHC 1873
•8 August 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2017-409-222 [2017] NZHC 1873
BETWEEN ATTORNEY-GENERAL
Applicant
AND
THE DISTRICT COURT AT CHRISTCHURCH
First Respondent
AND
FRANCISCUS SCHAAPVELD Second Respondent
Hearing: 3 August 2017 Appearances:
M N Zarifeh for Applicant
No appearance for First Respondent(abide Courtʼs decision and attendance excused) K J Beaton for Second Respondent
Judgment:
8 August 2017
JUDGMENT OF MANDER J
[1] The Attorney-General has applied to judicially review a decision of the first respondent, the District Court at Christchurch, to grant the second respondent, Mr Franciscus Schaapveld, a rehearing on the United Kingdom’s application that he be held eligible to be extradited to its jurisdiction.1 The District Court, while accepting it had no statutory power to grant a rehearing, considered it was able, pursuant to an inherent power, to grant Mr Schaapveld’s application. The Attorney-
General challenges that finding of jurisdiction and argues the Court was functus
officio.
1 Judicial Review Procedure Act 2016, s 16; High Court Rules 2016, Part 30.
[2] In accordance with convention, the District Court at Christchurch abides the decision of this Court.
Background
[3] In August 2016 Judge Farish heard and granted the United Kingdom’s application for a surrender order pursuant to Part 4 of the Extradition Act 1999 (the Act) to return Mr Schaapveld to the United Kingdom to face charges relating to the importation of controlled drugs.2 The following month, Mr Schaapveld made application to the same Court to rehear the decision to surrender him to the United Kingdom.3
[4] The merits of Mr Schaapveld’s application are not in dispute. It is accepted that deficiencies in his representation resulted in him not being provided with the opportunity to present evidence in support of his opposition to the extradition and to outline his medical and personal circumstances. As a result, it is accepted Mr Schaapveld was denied a fair hearing.
[5] However, the Crown does not accept the District Court has an inherent power or jurisdiction to grant a rehearing and says that after the District Court made an order for Mr Schaapveld’s surrender, it was functus officio. It submits the appropriate course was for Mr Schaapveld to appeal the decision to this Court and
seek a direction that the proceeding be reheard.4 The United Kingdom would not
contest the appeal.5
District Court decision
[6] Judge Farish acknowledged there was no statutory power available to the District Court to order a rehearing. However, the Judge, relying upon obiter comments in Dotcom v United States of America,6 considered the District Court had
an inherent power to ensure that a person facing extradition receives a fair hearing.
2 The surrender order and warrant for detention was sealed by the District Court on
12 August 2016.
3 Criminal Procedure Act 2011, s 177; Extradition Act 1999, s 43.
4 Extradition Act 1999, ss 68 and 72.
5 An appeal under s 68 of the Act was filed but was abandoned.
6 Dotcom v United State of America [2014] NZSC 24, [2014] 1 NZLR 355.
Because it was uncontested that Mr Schaapveld had been denied the opportunity to fully present his opposition at the original hearing of the surrender application, Judge Farish directed that it be reheard.
[7] The Judge was not satisfied the right provided by the Act to appeal a determination on a question of law provided a suitable remedy. Judge Farish took the view that any appeal was restricted to matters that were before the Court at the time the decision was made, and did not extend to a challenge based upon procedural unfairness. The Judge was reinforced in that view by the limitation that the question of law the subject of the appeal could only be determined on the basis of evidence that had been before the District Court at the time it made its decision to surrender
Mr Schaapveld to the United Kingdom.7
The application for review
[8] The Attorney-General maintains the District Court erred in law in concluding that it had an inherent power to grant a rehearing. He seeks orders setting aside the order of the District Court granting a rehearing and remitting the matter to the District Court for reconsideration of Mr Schaapveld’s surrender.
The absence of a statutory power of rehearing
[9] Section 43 of the Act provides as follows:
43 Powers of court
(1) In proceedings under this Part, except as expressly provided in this
Act or in regulations made under section 102,—
(a) the court has the same jurisdiction and powers under the Criminal Procedure Act 2011 as if the proceedings were in respect of a charge for a category 2 offence committed within the jurisdiction of New Zealand:
(b) the following provisions apply to the proceedings, so far as applicable and with the necessary modifications:
(i) sections 14, 35, 157 to 175, subpart 3 of Part 5, and sections 365 and 379 of the Criminal Procedure Act
7 Extradition Act 1999, s 72(2)(a).
2011 and any relevant rules of court (including those relating to service) made under that Act:
(ii) Parts 1 (except sections 9 to 12), 2, and 3 of the Bail
Act 2000:
(iii) sections 38 to 44 of the Criminal Procedure
(Mentally Impaired Persons) Act 2003.
…
[10] For the purpose of proceedings under Part 4 of the Act, s 43(1)(a) provides the Court with the same jurisdiction and powers as under the Criminal Procedure Act
2011 as if the proceedings were in respect of a category 2 offence committed within the jurisdiction of New Zealand. However, it does not include the ability to do so in a modified form as provided by s 43(1)(b) in respect of explicit provisions exhaustively listed in sub paragraph (i).
[11] The power to grant a rehearing under s 177 of the Criminal Procedure Act is not included in the list set out in s 43(1)(b)(i). While the provisions listed in paragraph (b) are able to be applied in a modified form for the purpose of proceedings under Part 4 of the Act, Parliament did not extended that flexibility to the more general application of jurisdiction and powers set out in paragraph (a). As a result, s 177 of the Criminal Procedure Act plainly on the face of its express terms is unable to be applied to extradition proceedings. Absent any specific provision in the Act itself for the rehearing of a surrender application, the District Court does not have statutory power to grant a rehearing.
Could the surrender order have been appealed?
[12] Section 68 of the Act provides a right of appeal against determinations in respect of eligibility for surrender:
68 Appeal on question of law only
(1) This section applies if the District Court determines under section 24 or 45 that a person is or is not eligible for surrender in relation to any offence or offences for which surrender is sought, and either party considers the determination erroneous in point of law.
(2) If this section applies, the party may appeal against the determination to the High Court on a question of law only.
(3) To lodge an appeal the party must, within 15 days after the determination, file in the office of the court to which the appeal is being taken a notice of appeal in the prescribed form.
Section 72 of the Act provides as follows:
72 Powers of court on appeal
(1) The High Court must hear and determine the question or questions of law arising on any case transmitted to it, and do 1 or more of the following things:
(a) reverse, confirm, or amend the determination in respect of which the case has been stated:
(b) remit the determination to the District Court for reconsideration together with the opinion of the High Court on the determination:
(c) remit the determination to the District Court with a direction that the proceedings to determine whether the person is eligible for surrender be reheard:
(d) make any other order in relation to the determination that it thinks fit.
(2) In hearing and determining the question or questions of law arising on any case transmitted to it, the court—
(a) must not have regard to any evidence of a fact or opinion that was not before the District Court when it made the determination appealed against; and
(b) may in the same proceeding hear and determine any application for a writ of habeas corpus made in respect of the detention of the person whose surrender is sought.
[13] The statutory appeal right applies if a party considers the determination erroneous in point of law.8 The High Court must hear and determine the question of law “arising on any case transmitted to it”. Various remedies are available. These include remitting the determination to the District Court with a direction that the
proceedings to determine whether the person is eligible for surrender be reheard.9
8 Extradition Act 1999, s 68(1).
9 Section 72(1)(c).
[14] The parties accept a determination that Mr Schaapveld is eligible for surrender which is made as the result of an unfair hearing must as a matter of law be considered erroneous. I therefore consider it feasible to frame a question for the purpose of an appeal premised on such a point of law as required by s 68(1) of the Act.
[15] However, Mr Schaapveld maintains he would not be able to pursue an appeal based on such a ground because the appeal Court is unable to have regard to any evidence of fact or opinion that was not before the District Court.10 He would not be able to demonstrate why the hearing was unfair because the High Court could not receive the necessary evidence attesting to the omissions of his counsel that led to the failure to place evidence before the District Court to support his opposition to the surrender application.
[16] There is some force in that submission. In the course of Judge Farish’s extradition decision she refers to submissions having been filed both by Mr Schaapveld and his counsel regarding his personal situation and the delay in the matter being progressed in the United Kingdom. The explanation for the failure to provide evidence in support of these arguments, which is contended to have resulted from inadequate representation and counsel error, would necessarily require evidence to be adduced on the appeal.
[17] Mr Zarifeh on behalf of the Attorney-General submitted there was sufficient information on the Court record to allow an appeal Court to properly consider the circumstances of Mr Schaapveld’s case. He referred to:
(a) adverse comments made by Judge Farish regarding Mr Schaapveld’s representation prior to the Court making its determination which are recorded in a transcript of the exchange between counsel and the
Court;
10 Section 72(2)(a).
(b)the evident fact that no affidavit evidence was filed by Mr Schaapveld despite the basis upon which he sought to oppose the United Kingdom’s application;
(c) that there was correspondence from Mr Schaapveld to the Legal Services Commissioner raising concerns about his representation that found its way onto the District Court file, including a handwritten statement or draft affidavit which Mr Schaapveld had prepared; and
(d)that the Court had to hear directly from Mr Schaapveld, in addition to his counsel, at the hearing of the application.
[18] Collectively, it was submitted, this information provided a sufficient basis upon which to deal with the appeal without further evidence being filed.
[19] The difficulty with accepting that submission is that notwithstanding the state of the record (if all the information referred to by Mr Zarifeh can properly be accepted as part of the formal Court record) it was not apparent to Judge Farish on the hearing of the application that the preparatory failings of Mr Schaapveld’s counsel were of such a degree that he could not receive a fair hearing. I have no doubt had Judge Farish been so aware she would not have proceeded to determine the application.
[20] The Judge, in her decision granting a rehearing observed she was conscious at the time of hearing the surrender application that no affidavit evidence had been put before her despite Mr Schaapveld bearing the onus of proof to demonstrate that his surrender would be oppressive or unjust. Judge Farish noted that had she known at the time of the difficulties Mr Schaapveld was having with his counsel, as detailed in his recently sworn affidavit, she would not have permitted the extradition hearing to have continued and would have directed the assignment of new counsel.
[21] It is as a result of that material obtained after the determination of the surrender application and because of inquiries made by the Crown, after securing a waiver of privilege from Mr Schaapveld, that the full extent of the inadequacies of
his legal advice and representation have become apparent and been accepted. Because of the position taken by the Attorney-General in the present case, the prohibition on further evidence being received by the appeal Court, at least from a practical perspective, may have been circumvented, but that would not be the situation where, as is ordinarily the case, an appeal is opposed.
[22] The most obvious avenue to challenge the inadequacy of the process before the District Court would have been by way of judicial review. This is an important feature which I will return to later in the judgment. Because of the availability of judicial review and the centrality of that remedy to my ultimate decision in this case, it is not necessary that I come to any concluded view on whether in the unusual circumstances of this case an appeal pursuant to s 68 could have been pursued. However, the doubtful availability of such an avenue of appeal as a result of having to file evidence that was not originally available to the District Court at the time it heard the extradition application is of significance to the balance of Mr Schaapveld’s argument relating to whether the original surrender decision was a nullity. This is an issue to which I will also return in this judgment.
The issue of the District Court’s inherent jurisdiction to grant a rehearing
[23] The District Court has an obligation to provide a person eligible for surrender with a fair hearing in accordance with the principles of natural justice.11 Similarly, the District Court’s ability to invoke its inherent power to prevent an abuse of its own process is indisputable. The difficulty which arises in the present case is whether, having finally determined a surrender application, the District Court has a residual inherent jurisdiction, in the absence of any statutory power, to rectify an
earlier defect in its own process by rehearing the application. The answer in my view is that it does not. In reaching that conclusion a number of more general considerations are required to be reviewed before addressing Mr Schaapveld’s
argument.
11 Dotcom v United States of America, above n 6, at [117]-[119], [184] per McGrath J and [284]
and [309] per Glazebrook J.
The distinction between inherent powers and inherent jurisdiction
[24] The distinction between inherent powers of a court and the ability of a court to exercise an inherent jurisdiction must be recognised. In Siemer v Solicitor- General the Supreme Court held:12
[113] All courts in New Zealand have inherent powers. While these powers have in the past sometimes been described as part of the “inherent jurisdiction” of the courts, we think that the term “inherent powers” more aptly describes them. “Jurisdiction” and “power” are two distinct concepts. The jurisdiction of a court is its substantive authority to hear and determine a matter. Jurisdiction may be inherent in a particular court or it may be conferred by statute. But every court has inherent powers which are incidental to or ancillary to its jurisdiction, whether that jurisdiction is inherent or statutory.
[114] …The courts’ inherent powers include all, but only, such powers as are necessary to enable a court to act effectively and uphold the administration of justice within its jurisdiction. Their scope extends to preventing abuse of the courts’ processes and protecting the fair trial rights of an accused. The inherent powers of a court do not, however, extend to furthering the general public interest beyond that concerned with the due administration of justice. Examples of the inherent powers which are necessary to enable a court to act effectively within its jurisdiction include powers to dismiss or stay proceedings, to control barristers and solicitors and to issue orders to preserve evidence.
[25] The distinction between an inherent jurisdiction and the exercise of inherent powers to enable a Court to effectively administer and protect its jurisdiction was noted by the Court of Appeal in Attorney-General v District Court at Otahuhu:13
[16] As a statutory court of limited jurisdiction, the District Court does not have an inherent jurisdiction to make any order necessary to enable it to act effectively as does the High Court. It is well settled, however, that as ancillary to its particular jurisdiction it has the powers necessary to enable it to act effectively within that jurisdiction. The most important of these inherent powers are the powers of a Court, subject to the rules of Court and to statute, to regulate its own procedure, to ensure fairness in investigative and trial procedures, and to prevent an abuse of its processes.
[26] Ms Beaton on behalf of Mr Schaapveld acknowledged the distinction between the exercise of an inherent jurisdiction which is the preserve of this Court and inherent powers available to the District Court ancillary to the exercise of its more limited statutory jurisdiction. Her argument rested on the proposition that the
District Court retained an inherent power to set aside its earlier order if it can be considered a nullity or to protect its own processes from abuse.
The limited jurisdiction of the District Court
[27] The District Court is a creature of statute, and while it has inherent powers to protect its own processes and to ensure it is able to properly and fairly discharge its functions, it does not have the power to extend its jurisdiction beyond its statutory bounds. In Zaoui v Attorney-General the appellant sought to have this Court utilise the inherent or implied powers of the District Court to vary a warrant of committal
made under the now repealed Immigration Act 1997.14 After noting the recognised
powers of the District Court to regulate its own statutory procedure, functions and processes to ensure fairness and to prevent an abuse of its process, Paterson J held that such powers could not extend the jurisdiction of the Court and declined to vary a warrant of commitment once it had been lawfully issued. In reaching that conclusion the Judge observed that:
[64] The powers of the District Court are ancillary and relate to process. They enable the Court to exercise its statutory functions, powers and duties, and to control its processes but do not extend the jurisdiction of the Court. They are not such that would allow the Court to vary the warrant once it has been lawfully issued pursuant to s 114O.
[65] A further problem that confronts Mr Zaoui on this point is that, in my view, the District Court is functious officio. In this case, the warrant issued, it is not a nullity, there has been no challenge to it apart from these proceedings, and there is now no way in which the Court could set aside its own order.
[28] This is comparable to the situation in which the District Court found itself in the present case.
The need for an extant proceeding to be before the Court
[29] In Dotcom v United States of America, the Supreme Court considered the requirements of natural justice and the District Court’s inherent power to ensure a fair hearing in the context of an extradition hearing.15 The Supreme Court’s observations in that case focused on the availability or ambit of a respondent’s right
to disclosure beyond the record of the case provided by the requesting state. The nature of the extradition process with which the Supreme Court was concerned in that case is not, for present purposes, material. However, importantly, the Court’s observations regarding the District Court’s inherent powers to ensure a fair hearing were made in respect of an extant application currently before the District Court. The extradition Court’s obligations to ensure the process is fair related to a proceeding of which it was still seized.
[30] The ability of the District Court to prevent an abuse of its own processes in the context of an extradition is beyond doubt. In Ortmann v United States of America Asher J, again in the context of a Part 3 extradition request, held:16
[14] It is clear that at a committal hearing a District Court has an implied statutory power to prevent abuse of its processes. By virtue of s 22 the Court considering an extradition application can be assumed to have the jurisdiction and powers that a Court carrying out a committal hearing would have, which includes the right to prevent an abuse of its process. It was observed by the Court of Appeal in Bujak v Republic of Poland that the District Court has a power under s 22 to prevent an abuse of its own processes by refusing to conduct a hearing to determine whether a person is eligible for surrender under the Act.
[31] The statements made by the Supreme Court and by this Court regarding natural justice and the inherent power to prevent an abuse of process were made where its statutory jurisdiction was extant. However, there is no authority that the District Court’s inherent powers to ensure a fair hearing and to prevent an abuse of process extend to a review function in the absence of any statutory power to grant a rehearing. This leads to a further related aspect of the jurisdiction to prevent an abuse of process.
The prospective nature of the power to protect the Court’s processes
[32] The inherent power to prevent an abuse of process is prospective in nature.17
As Richardson J put it in Moevao v Department of Labour, the justification for granting a remedy is that the Court must protect its own processes from abuse.18 In
order for the Court to be able to provide a remedy it must be seized of a proceeding
16 Ortmann v United States of America [2016] NZHC 522.
17 R v Antonievic [2013] NZCA 483, [2013] 3 NZLR 806 at [93].
both for there to be an existing process requiring protection and to be able to grant a remedy. Again, as Richardson J observed in Moevao when referring to whether a stay would be justified to prevent an abuse of its own process, it is “only where to countenance the continuation of the prosecution would be contrary to the recognised principles of the administration of justice”, that a remedy would be granted.19 The reference to “continuation” denotes the Court’s focus being on whether to allow a matter to proceed, rather than on whether an abuse has previously occurred. If the proceeding has ended and an order made, the remedy will lie with a superior Court
by way of appeal or judicial review.
Mr Schaapveld’s argument
[33] Ms Beaton submitted that where a decision to make a surrender order has been made in circumstances where the hearing should not have proceeded at all and the order therefore should not have been made, the finality of a Court’s decision must give way to the need to correct the injustice. Ms Beaton’s argument, that the Court retains an inherent power in such a situation to order a rehearing, was made on two alternative bases. Either the original surrender determination was a nullity or the circumstances admit of no alternative remedy by which to correct the injustice.
The question of nullity and an available remedy
[34] If a decision is a nullity then it is void from the very beginning (ab initio) and a Court’s jurisdiction, despite the purported finality of its decision, is arguably not exhausted. Strictly therefore it is not a question of the Court resorting to an inherent power to revisit its original decision, but rather a recognition of the Court’s unextinguished jurisdiction. However, a difficulty that immediately arises is how the District Court retains any jurisdiction to determine whether the original order was a nullity. Where the parties are agreed the original hearing was flawed, as in the present case, that does not immediately emerge as a significant problem. However, the jurisdictional limitation comes into sharp relief when consideration is given to how the Court would be expected to proceed should the standard of advice and representation Mr Schaapveld received been put in issue and the question of whether
he received a fair hearing contested.
19 At 482.
[35] Any entertainment by the District Court of an application based on an alleged nullity after it has clearly on its face made a final determination highlights that any reconsideration of such a decision, whatever the asserted grounds, involves an extension of jurisdiction rather than the exercise of an inherent power. It also begs the question, where does it end? Must the District Court every time there is a challenge to the legitimacy of its process after its determination of a proceeding consider and inquire into that claim? That cannot be the case and only underlines the importance of recognising the finality of the Court’s decisions.
[36] This leads to the second consideration as to whether there is the absence of an effective alternative remedy available to the injured party which makes it necessary for a Court of limited jurisdiction to invoke an inherent power to rehear a case. The absence of an adequate right of appeal in the present case was considered critical. However, the right to seek judicial review to this Court represents an obvious remedy. Unfair process is a primary example of a ground upon which to seek relief by way of judicial review.
Analysis of the argument and the authorities upon which it relies
[37] The concept of nullity and the non-availability of an effective remedy to assess whether a Court may have an inherent power to revisit an earlier decision have been considered in a number of cases. While Ms Beaton sought to rely upon a number of passages from those authorities in support of her argument, it is notable that none of them concern the inherent powers of the District Court. In combination the cases confirm the conclusion that the District Court does not have available to it an inherent power to order a rehearing in the absence of any statutory jurisdiction.
[38] In R v Holt the accused had been discharged on a number of charges after entering guilty pleas to other charges.20 She subsequently successfully vacated her guilty pleas before a different Judge. At the same time the charges upon which the accused had been discharged were purportedly reinstated. The Court of Appeal reaffirmed the fundamental principle that once a judgment or order has finally been
recorded a Court is functus officio having exhausted its jurisdiction on the subject
20 R v Holt [2008] NZCA 388, [2009] 1 NZLR 325 at [48].
matter of the order. The Court of Appeal held that an order made by the High Court pursuant to s 347 of the Crimes Act 1961 discharging an accused could not, in the absence of a finding that the order was a nullity, be reconsidered by the same Court. It held that if the order when formally made is not affected by any error operative at the time of its making the deemed acquittal must stand.
[39] In reaching that conclusion the Court of Appeal referred to this Court’s decision in Butterfield v R, where there was further recognition that a Court is functus officio once judgment has been finally ordered and that there is no inherent jurisdiction to set an order aside.21 However, in that case an appeal against sentence to this Court had been dismissed on the basis of a fundamental misunderstanding; the Judge had misapprehended that he was dealing with two concurrent sentences when in fact there was only one before the Court. The second sentence had been appealed to the Court of Appeal, arising as it did from an indictable proceeding and was not
before the High Court. Panckhurst J held that because the Judge had proceeded on the basis of a premise that was, on the face of the record, demonstrably wrong, the order made was properly to be viewed as a nullity.
[40] From that and other authorities the Court of Appeal in Holt concluded that in order to determine the validity or finality of an order it is necessary to determine whether the order is, on its face and in formal terms, properly made. A formal and technically sound record of an order is prima facie evidence of its finality, and only where there is an essential flaw in the order’s internal logic can it be considered a
nullity and reviewable.22
[41] In support of her argument that the surrender order in the present case constituted a nullity, Ms Beaton sought to rely on the observation made by the Court of Appeal in Holt, referring to this Court’s decision in Butterfield, that where information critical to the making of an order is misconstrued or not accounted for at
the time the order is made, the order may be characterised as a nullity.23 Ms Beaton
21 Butterfield v R [1997] 3 NZLR 760 (HC).
22 At [53] and [54].
23 At [53].
also referred to the statement of Cooke J in Police v Thomas that, in practice, questions of miscarriage of justice and nullity will often tend to merge.24
[42] Even accepting that the issue of what may constitute a nullity may be open to interpretation I do not consider the challenge made by Mr Schaapveld, relating as it did to the adequacy of the advice and the standard of representation by his counsel, could lead to a finding that the extradition order made by Judge Farish constituted a nullity. On the information available to the Court at the time the decision was made it could not be contended the Judge misconstrued information critical to the making of the order or failed to take into account a matter essential to its making. There was no essential flaw in the Judge’s approach, or internal illogicality which would render it a nullity.
[43] As I observed earlier in this judgment, and it is not contended otherwise, it was not and could not have been apparent to Judge Farish when hearing the extradition application that the inadequacies of Mr Schaapveld’s counsel and the standard of his representation were such as to impugn the fairness of the hearing. Importantly, the Court made no error in dealing with the application that was operative at the time the order was made. It was only later, after Mr Schaapveld obtained new counsel and inquiries were able to be undertaken, that the inadequacy of his representation and its impact on the proceeding became apparent.
[44] This links with the issue previously discussed regarding the ambit of any possible appeal. Mr Schaapveld’s argument, which was accepted by the District Court, was that such additional information could not be received as fresh evidence by an appeal Court which was limited to that adduced at the original extradition
hearing.25 This acknowledged need to rely on evidence beyond the face of the order
or the record of the proceeding illustrates the conceptual difficulty of classifying the
order for Mr Schaapveld’s surrender as a nullity.
[45] It follows from these considerations that I am not satisfied the District
Court’s determination that Mr Schaapveld was eligible for surrender constituted a
24 Police v Thomas [1977] 1 NZLR 109 (CA) at p 121.
25 Extradition Act 1999, s 72(2)(a).
nullity. However, even if I concluded the decision could be so categorised, it does not follow that the District Court can resort to an inherent power to rehear a case. In R v Smith the Court of Appeal held:26
[36] The reasoning of Lord Woolf CJ and Kirby J applies with equal force to the judgments of this Court. The Court has inherent power to revisit its decisions in exceptional circumstances when required by the interests of justice. Such power is part of the implied powers necessary for the Court to “maintain its character as a court of justice”. Recourse to the power to reopen must not undermine the general principle of finality. It is available only where a substantial miscarriage of justice would result if fundamental error in procedure is not corrected and where there is no alternative effective remedy reasonably available. Without such response, public confidence in the administration of justice would be undermined.
(Emphasis added)
[46] Essential to the Court of Appeal’s recognition of its inherent power in exceptional circumstances to revisit its own decision is that there be no alternative remedy. This is demonstrated by the observations of Lord Woolf CJ and Kirby J referred to in the passage cited from Smith, where their lordships in Taylor v Lawrence acknowledged the residual power vested in “a court of appeal to avoid real injustice in exceptional circumstances” to reopen a proceeding after the ordinary
appeal process has been concluded.27 However, the English Court of Appeal
remarked it would only do so if it was satisfied the House of Lords would not give leave to hear a further appeal. In R v Bow Street Metropolitan Stipendary Magistrate, ex p Pinoche Ugarte (No 2) the House of Lords acknowledged its jurisdiction to rescind or vary an earlier order where the earlier decision was made following procedural unfairness, however, critical to that recognition was that it represented the ultimate court of appeal.28
[47] Similarly, in Smith itself the Court of Appeal, in recognising that it had an inherent power to revisit its decisions in exceptional circumstances when required in the interests of justice, held that it was a necessary prerequisite that no alternative effective remedy was reasonably available. The Court observed that in the case
before it no further appeal as of right was available and that the availability of an
26 R v Smith [2003] 3 NZLR 617 (CA).
27 Taylor v Lawrence [2002] 2 All ER 353 at [54].
28 R v Bow Street Metropolitan Stipendary Magistrate, ex p Pinoche Ugarte (No 2) [2000] 1 AC
119 at 132.
appeal by special leave of the Privy Council was uncertain and expensive, noting it would be unfair to appellants and the Privy Council to require all who sought correction of an acknowledged error to petition for special leave.29
The overarching availability of a remedy
[48] It is notable that in each of these cases where an inherent power to reopen a proceeding was recognised, the residual jurisdiction in issue concerned courts discharging an appellate function where there was no alternative effective remedy reasonably available to the party in the face of substantial injustice or procedural unfairness. That will simply not be the situation in the District Court which remains subject to the overarching supervisory jurisdiction of this Court.
[49] The High Court has a general supervisory jurisdiction over the proceedings of inferior courts and tribunals, and over the exercise of statutory power generally.30
That jurisdiction is exercisable in a myriad of circumstances, including where there has been serious procedural impropriety leading to a denial of natural justice.31 The procedure for giving effect to that supervisory jurisdiction will be by way of an application for judicial review, of which the present case is an example. Of course, the High Court cannot review its own decisions, nor does the Court of Appeal have any power of judicial review. It is therefore unsurprising that the authorities relied upon by Ms Beaton in support of her argument of an inherent power or jurisdiction to rehear a case are from decisions involving superior Courts where no suitable remedy is available to correct the error giving rise to the injustice.
Conclusion
[50] I am satisfied the District Court erred in its determination that it had available to it an inherent power to grant a rehearing when its jurisdiction ceased upon it making an order for Mr Schaapveld’s surrender. The District Court was correct to conclude it had no statutory right to grant a rehearing. However, in the absence of any extant proceeding over which it retained jurisdiction or any statutory jurisdiction
to receive an application to consider the merits of a rehearing it was functus officio.
29 At [36]-[38].
30 Auckland District Court v Attorney-General [1993] 2 NZLR 129 (CA).
31 McCarthy v Grant [1959] NZLR 1014 (SC).
[51] The parties are agreed that because of the deficiencies in Mr Schaapveld’s representation before the District Court about which there is no dispute and which affected the hearing of the United Kingdom’s application, the District Court’s original decision holding him eligible for surrender and the resulting orders should be held to have resulted from an unfair hearing and be set aside. It is convenient therefore, and both parties are agreed, that I should treat the current application for judicial review as extending to include review of the substantive extradition decision. Accordingly, I make the following orders:
(a) The decision of the District Court at Christchurch that Mr Schaapveld was eligible for surrender is set aside.
(b) The original surrender order dated 12 August 2016 is set aside.
(c) The order of the District Court at Christchurch of 2 December 2016 granting a rehearing is set aside.
(d)The matter is remitted back to the District Court at Christchurch for it to reconsider Mr Schaapveld’s surrender in light of any affidavits he may file.
[52] I understand no issue arises as to costs. If that is not the case counsel have leave to exchange and file memoranda addressing the issue.
Solicitors:
Raymond Donnelly & Co, Christchurch
Kerryn Beaton Barrister, Christchurch
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