Baylis v District Court at Palmerston North
[2022] NZHC 3112
•25 November 2022
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CIV 2022-454-12
[2022] NZHC 3112
BETWEEN CLINTON BARRY BAYLIS
Applicant
AND
THE DISTRICT COURT AT PALMERSTON NORTH
First Respondent
THE ATTORNEY-GENERAL
Second Respondent
Hearing: 21 November 2022 (via Teams) Counsel:
No appearance for Applicant
N White for First Respondent (abides) E Pairman for Second Respondent
Minute:
25 November 2022
JUDGMENT OF MALLON J
Introduction
[1] The applicant sought judicial review of a decision of the Palmerston North District Court declining to adjourn his jury trial on 22 March 2022. The applicant was subsequently granted an adjournment in the District Court. This means that the judicial review is now moot. The applicant has failed to file a notice of discontinuance. The second respondent seeks to have the judicial review dismissed or stayed. He also seeks costs.
Background
[2] The applicant was scheduled to appear on charges at the District Court of Palmerston North on 1 October 2021.
BAYLIS v THE DISTRICT COURT AT PALMERSTON NORTH [2022] NZHC 3112 [25 November 2022]
[3] On 3 September 2021 Mr Baylis’ counsel filed an application to adjourn the trial as he had suffered a bereavement and the COVID-19 lockdown meant that he was unable to travel to Palmerston North and prepare for trial. The application for adjournment was granted by the District Court on 23 September 2021 and the trial was given a reserve March 2022 date (as a back up to a drugs trial). Counsel was advised that there was a very high prospect of the matter being heard in March 2022, with a tentative start date of 21 March 2022.
[4] The drugs trial was aborted on 15 March 2022. That day the Court advised counsel that the applicant’s trial would commence on 21 March 2022. Counsel informed the Court that he had tested positive for COVID-19, and the trial was adjourned until 28 March 2022. The District Court advised in a minute that the trial would proceed on 28 March 2022 and any application for an adjournment was likely to be declined.1 The Judge advised that if counsel was unable to attend on that date, urgent arrangements should be made for alternative counsel.2
[5] On 22 March 2022 counsel applied to adjourn the trial again on the basis that his mother had contracted COVID-19 and his child was symptomatic (but testing negative). He had not briefed alternative trial counsel and did not propose to do so. The Crown opposed the adjournment of the trial. The District Court declined to adjourn the trial. The reasons were that the applicant was in custody, the allegations were serious and the two complainants were expecting their trial to proceed. Further, alternative arrangements for counsel could be made if present counsel was unable to attend the trial.3
[6] On 23 March 2022 counsel filed an appeal against this refusal to adjourn the trial. On 24 March 2022 a notice of abandonment of the appeal4 and a without notice application for judicial review of the District Court Judge’s decision to refuse adjournment were filed. The judicial review sought a declaration that the Judge erred
1 R v Baylis DC Palmerston North CRI-2020-054-1265, 15 March 2022 (minute of Judge B R Northwood) at [5].
2 At [6].
3 R v Baylis DC Palmerston North CRI-2020-054-1265, 22 March 2022 (minute of Judge B R Northwood).
4 An adjournment is not one of the pre-trial decisions listed in s 217(2) of the Criminal Procedure Act 2011 and is also not amenable to appeal under s 296 of that Act.
in declining the adjournment in the circumstances and an order adjourning the trial was sought. On 11 April 2022 the High Court dismissed an application for interim orders.
[7] On 25 March 2022 a further application for adjournment was heard in the District Court. The application was granted. This meant that the substantive relief sought in the judicial review proceeding was effectively granted by the District Court. A notice of discontinuance of the judicial review was anticipated.
[8] On 27 June 2022 the High Court issued a minute noting that a notice of discontinuance of the judicial review proceeding was expected but not yet received.5 The proceeding was adjourned for one week and the applicant was directed to file a notice of discontinuance or a memorandum proposing a timetable to a hearing by 4 July 2022.6 This order was not complied with.
Application
[9] The second respondent then applied for a permanent stay or dismissal of the judicial review proceeding and for costs. There was no appearance for the applicant.
[10] A court will not give a remedy in a judicial review that serves no useful purpose.7 The futility of remedy provides a basis for striking out moot causes of action at an interlocutory stage.8 That is the case here. The substantive remedy sought by the applicant in this Court has been achieved through the adjournment subsequently granted in the District Court. The judicial review proceeding is therefore struck out.
[11] I decline to make an order for costs. It appears that a waiver of fee was sought for the judicial review application. The judicial review application was brought urgently in connection with a criminal proceeding because there was no other avenue for securing the adjournment which was ultimately granted in any event. While a
5 Baylis v Palmerston North District Court HC Palmerston North CIV-2022-454-12, 27 June 2022 (minute of Palmer J) at [1].
6 At [2].
7 For example, Te Whakakitenga o Waikato Inc v Martin [2016] NZCA 548, [2017] NZAR 173 at [39].
8 Crusader Meats New Zealand Ltd v New Zealand Meat Board HC Wellington CP85/02, 16 December 2002.
notice of discontinuance should have been filed promptly, having the judicial review proceeding formally dismissed involved little time and cost.
Mallon J
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