BETWEEN G (CA38/2023) Appellant AND COMMISSIONER OF POLICE First Respondent CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Second Respondent WELLINGTON DISTRICT COURT Third Respondent
[2024] NZCA 472
•23 September 2024 at 11.00 am
NOTE: DISTRICT COURT ORDER IN [2020] NZDC 10559 PROHIBITING
PUBLICATION OF THE NAME AND IDENTIFYING PARTICULARS OF G
REMAINS IN FORCE.
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
CA38/2023
[2024] NZCA 472
BETWEEN G (CA38/2023) Appellant AND COMMISSIONER OF POLICE First Respondent CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Second Respondent WELLINGTON DISTRICT COURT Third Respondent
| Court: | Cooper P, Miller and Courtney JJ |
| Counsel: | Appellant in person |
| A M Powell, M W McMenamin and I M C A McGlone for | |
| First and Second Respondents | |
| No appearance for Third Respondent | |
| D A Ewen KC as counsel assisting the Court |
REASONS
(Given by Cooper P)
This judgment relates to an appeal from a decision made by Isac J on
23 December 2022 to grant interim relief in this proceeding.[1] We received
submissions directed to whether the appeal should be heard.
[1] G v Commissioner of Police [2022] NZHC 3628 [interim relief decision].
Having had regard to those submissions, we dismiss the appeal as moot and
give our reasons below. To explain that outcome, it is necessary first to set out the
procedural history.
Procedural history
G is a New Zealand citizen who had been living in Australia. He was convicted
on charges of supplying a prohibited drug in commercial quantities and was
subsequently returned to New Zealand by the Australian authorities where, upon
landing in Wellington, he was served with a determination notice under the
Returning Offenders (Management and Information) Act 2015 (the ROMI Act).
Attached to the notice were standard release conditions to which he was automatically
subject, together with a draft order for three interim special conditions, which had been
filed in the District Court prior to his arrival. Relevantly, the ROMI Act was enacted
after G had committed, been convicted of and received a sentence for his offending in
Australia.
In a judgment delivered 19 December 2022, Gwyn J held that the
determination that G was a returning prisoner amounted to the retrospective
imposition of a penalty and double jeopardy in violation of his rights under the
New Zealand Bill of Rights Act 1990 (2022 High Court decision).[2] This, she held,
was the result of the Commissioner impermissibly applying the provisions of the
ROMI Act to G.[3] The Judge also concluded that the terms of the ROMI Act obliged
the Commissioner to give G the opportunity to be heard before making the determination, finding that s 27(1) of the Bill of Rights Act had been breached.[4]
The Judge declared the determination unlawful and quashed the Commissioner’s
decision to make it.[5] The Commissioner appealed.
[2] G v Commissioner of Police [2022] NZHC 3514, [2023] 2 NZLR 107 [2022 High Court decision]
[3] At [79]–[82] and [88]–[92].
[4] At [139]–[140].
[5] At [156(a)]–[156(b)].
On 23 December 2022, Isac J made an interim order suspending
implementation of the declaratory order insofar as it might affect returned offenders
other than G, pending an appeal of the High Court’s substantive judgment. His order
read as follows:[6]
[25] I stay the effect of the judgment of the Court dated 19 December 2022
to the extent the judgment might impose an obligation, whether legal or
constitutional, upon the Executive to give effect to the ruling in respect of
persons other than the applicant, pending determination of the appeal filed in
the Court of Appeal under CA 717/2022 and for hearing in that Court on
2 February 2022.
[6] Interim relief decision, above n 1.
G sought leave to appeal Isac J’s judgment. On 20 January 2023, the Judge
granted leave to appeal under s 56(3) of the Senior Courts Act 2016. He wrote:[7]
[7] G v Commissioner of Police [2023] NZHC 19 [leave decision].
[10] This case meets the high threshold required for leave to appeal an
interlocutory decision. The Crown accepts that G has identified questions of
law of general and public importance capable of proper argument warranting
an appeal. In light of the authorities in the High Court, there is a question
whether the Court can grant interim relief staying a non-executory order.[8] In
[8] Citing Bayer New Zealand Ltd v Ministry for Primary Industries [2020] NZHC 3470; and
addition, as G argues, the interim order may affect a large number of people
who might otherwise be entitled to release from orders and conditions
imposed under the Act.
…
[12] G’s application for leave to appeal, in relation to the interim relief
decision, is granted. Subject to a contrary view of the Court of Appeal, the
issues appear to be:
(a) whether the High Court has a power to grant an interim order under r 12 of the Court of Appeal (Civil) Rules 2005
suspending a declaratory order; and
(b) if so, whether the Court was plainly wrong in the exercise of its discretion.
After the Commissioner’s appeal was heard, but before our judgment was
delivered, Parliament enacted the Returning Offenders (Management and
Information) Amendment Act 2023 (the Amendment Act), which expressly provided
for the retrospective application of the ROMI Act to persons in G’s position, even
where that would be inconsistent with other law including the 2022 High Court
decision, s 12 of the Legislation Act 2019, and s 7 of the Interpretation Act 2019.[9]
The Amendment Act also set out Parliament’s explicit intention that the ROMI Act’s
provisions would override other inconsistent law, including in particular s 6(1) and (2)
of the Sentencing Act 2002, and ss 25(g) and 26(2) of the Bill of Rights Act. However,
the provisions of the Amendment Act expressly did not affect the rights of any parties
to the appeal from Gwyn J’s decision.[10]
[9] Returning Offenders (Management and Information) Amendment Act 2023, s 4; and Returning
[10] Returning Offenders (Management and Information) Amendment Act, s 9; and ROMI Act, above
On 26 April 2023, we delivered our decision in Commissioner of Police v G,
allowing the Commissioner’s appeal and setting aside the decision of the High Court
quashing the determination of the Commissioner that G was a returning prisoner under
s 17(1) of the ROMI Act.[11]
[11] Commissioner of Police v G [2023] NZCA 93.
On 2 May 2023, Miller J issued a minute recording that there was disagreement
about whether the appeal against Isac J’s interim relief decision should still be heard
given it was “strictly moot” following the release of the Court’s judgment allowing
the Commissioner’s appeal. He considered that:
[2] Because this is in substance a decision about whether the appeal
should be struck out, the question of mootness should be referred to the panel
which sat on Commissioner of Police & Anor v G & Anor [2023] NZCA 93.
The decision will be treated as an exercise of the Court’s jurisdiction under
r 44A [of the Court of Appeal (Civil) Rules 2005], the question being whether
it is an apt use of the Court’s resources to answer a question which can have
no effect on the appellant’s status as a returning offender.
He directed that the matter would be decided on the papers.
On 14 September 2023, the Supreme Court declined G’s application for leave
to appeal from this Court’s judgment.[12] It held that the effect of the Amendment Act
was that the only person affected by this Court’s decision was now G. His release
conditions had long since expired, so the appeal was now “largely moot”. The Court
did not consider the proposed appeal involved a matter of general or public
importance.[13]
Submissions
[12] G (SC 50/2023) v Commissioner of Police [2023] NZSC 123.
[13] At [8].
In compliance with Miller J’s direction, the appellant’s submissions were
directed to the application of r 44A of the Court of Appeal (Civil) Rules 2005. He
submitted that r 44A does not read in terms of “apt use of the Court’s resources”, but
rather permits this Court to strike out appeals on its own initiative only where:[14]
(c) the appeal is frivolous, vexatious, or otherwise an abuse of the process of the Court.
[14] Court of Appeal (Civil) Rules 2005, r 44A(1)(c).
Further, he refers to r 5(4), which directs that:[15]
[15] Emphasis added.
(4) If any matter arises in a proceeding for which no form of procedure is prescribed by these rules, the Court must dispose of the matter as
nearly as practicable in accordance with the provisions of these rules
affecting any similar matter, or, if there are no such provisions, in the
manner that the Court thinks best calculated to promote the ends of
justice.
The appellant submits that r 44A(1) cannot seriously be held to apply to this
appeal. Accordingly, the procedure to be adopted by this Court, calculated to promote
the ends of justice, turns on whether it is an apt use of the Court’s resources to set the
matter down for hearing or whether to do so would amount to an abuse of the Court’s
process. The appeal is at least arguable and, the appellant submits, the fact of the
Court’s resources being under pressure is not a good reason to “put the proverbial
breaks on justice”.
The appellant suggests that the constitutional significance of what is at stake is
such that King’s Counsel should be appointed alongside counsel assisting, and that
this Court should seriously consider appointing of the New Zealand Law Society and
New Zealand Bar Association as interveners.
Counsel appointed to assist the Court, the late Mr Ewen KC, submitted that
both the Crown and Isac J recognised the fact that the points raised were of general
importance. He noted that the Crown had also responsibly conceded the Court can
hear and determine moot points, depending on the significance of the issue for the law
of New Zealand.
Mr Ewen submitted that the Crown asked for, and obtained, relief relating to
its potential obligations to third parties arising from Gwyn J’s judgment, particularly
paras [101]–[102] and [156]. The Crown did not seek to stay the orders made in
respect of the appellant at [156(b)]–[156(e)], instead seeking a suspension of the
declaration made at [156(a)]:[16]
[16] 2022 High Court decision, above n 2.
(a) A declaration that the decision made by the first respondent on or about 26 September 2019 to determine that G was a returning prisoner
under s 17 and recorded in the Determination Notice issued under s 19
of the Returning Offenders (Management and Information) Act 2015
is unlawful.
This was sought “in the face” of authorities that a declaration cannot be the subject of
a stay under r 12(3)(a) of the Court of Appeal (Civil) Rules.[17]
[17] Willowford Family Trust v Christchurch City Council [2006] 1 NZLR 791 (HC) at [22];
Mr Ewen submitted that Isac J’s grant of relief was couched as a stay, and
purported to stay “the effect” of the reasons for judgment, rather than the declaration
or orders. He argued a stay directed to the reasons for judgment rather than the
operative order represents a significant departure from the existing case law. Before
interim relief could be afforded, there needed to be a legal obligation from which the
Court could relieve performance.
Mr Ewen submitted the questions raised by the appellant’s appeal are of
undoubted constitutional significance and general importance, even if they are moot.
They are clearly capable of serious argument. In comparison to the issues that led the
Supreme Court to hear and determine R v Gordon-Smith,[18] the issues in the present
case appear to have far wider application.
[18] R v Gordon-Smith [2008] NZSC 56, [2009] 1 NZLR 721.
Counsel for the first and second respondents, submit that the appeal has been
rendered moot because the interim relief granted by the Court now has no effect.
Although mootness does not deprive the court of jurisdiction, counsel argue that
appellate courts do not generally decide appeals where the decision will have no
practical effect on the rights of the parties before the court. This case is not one of the
rare cases in which exceptional circumstances justify the Court to depart from its
policy of restraint and hear a moot appeal.
Decision
On reflection, we accept that r 44A(1) does not apply. It provides:[19]
[19] Emphasis added.
44A Court’s power to strike out or stay appeal (1) In addition to any express power in these rules to strike out an appeal, the Court may, on an interlocutory application or on its own initiative,
make an order striking out or staying an appeal in whole or in part if—
(a) the appellant is in continuing default in complying with any of these rules or with any procedural direction or order made
by a Judge; or
(b) the appellant has failed to prosecute the appeal with due diligence and dispatch; or
(c) the appeal is frivolous, vexatious, or otherwise an abuse of the process of the Court.
This Court has said that a “frivolous” pleading is one which “trifles with the
court’s processes”, while a “vexatious” one “contains an element of impropriety”.
A pleading that is “otherwise an abuse of process of the court” extends beyond the
other grounds and captures all other instances of misuse of the court’s processes, such as a proceedings that has been brought with an improper motive or in an attempt to
obtain a collateral benefit.[20]
[20] Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR
It cannot properly be said that pursuing an appeal for which leave to appeal
was granted by the High Court, and which the Crown has conceded concerns questions
of public importance, can fall under r 44A. The powers of the Court to strike out
proceedings must be used sparingly.
However, we are in no doubt the appeal is moot.
This Court has recently summarised its approach to the issue of mootness in
Thornley v Ford:[21]
[21] Thornley v Ford [2024] NZCA 154.
[45] The traditional position was that an appeal would not be heard “where
the substratum of the … litigation between the parties ha[d] gone and there
[was] no matter remaining in actual controversy and requiring decision”.[22]
[22] Finnigan v New Zealand Rugby Union Inc (No 3) [1985] 2 NZLR 190 (CA) at 199.
However, whether to entertain a moot appeal is now a matter of discretion
rather than jurisdiction.[23] In exercising this discretion, the courts generally do
[23] See for example: Attorney-General v David [2002] 1 NZLR 501 (CA); R v Secretary of State for
not decide appeals where the decision will have no practical effect on the
rights of the parties before the court in relation to what was in issue between
them in lower courts.[24] This policy of restraint reflects the adversarial nature
[24] R v Gordon-Smith, above n 18, at [16]; and Baker v Hodder (SC), above n 23, at [32].
of the appellate process, the need for economy in the use of the limited
resources of appellate courts and that advisory opinions are generally not
within the court’s proper role in the system of government.[25]
[25] R v Gordon-Smith, above n 18, at [18]; and Baker v Hodder (SC), above n 23, at [32]. The
…
[47] In Baker v Hodder, shareholders were in dispute over whether to sell
a farm which was the primary asset of the company. The shareholders wishing
to sell the farm successfully obtained from the High Court relief under s 174
of the Companies Act 1993 requiring the farm to be sold. This Court declined
to hear the appeal on the basis that the appeal was moot because by then the
farm had been sold.[26] The Supreme Court allowed the appeal.
[26] Baker v Hodder [2017] NZCA 355.
[48] In exercising its discretion to hear the appeal, the Supreme Court
considered that this Court should have determined the appeal because: there
remained a real dispute about costs;[27] there were issues of fairness arising from
the procedure adopted in the High Court;[28] there was a proper concern as to
whether the decision could affect the ability of the party against whom the
relief was ordered to pursue a future claim against the other shareholders who
had sought that relief;[29] there were important company law issues at stake that
could affect future transactions;[30] as the parties were ready to argue the appeal,
the Judges would have already read the written submissions, and the appeal
was on a confined point, this Court’s resources would not have been
stretched;[31] and there was nothing about the case that gave rise to any issue of
sensitivity in relation to the Court’s proper role.[32]
[27] Baker v Hodder (SC), above n 23, at [36]–[39].
[28] At [43].
[29] At [41].
[30] At [42].
[31] At [44].
[32] At [44].
It is clear that the factual issues underlying the present proceeding are no longer
live, and that the appeal is moot. A decision to hear a moot appeal should be made
only in exceptional circumstances. Whether the Court’s resources should be used to
hear the appeal turns on the importance of the legal issue raised and the likelihood that
future cases may well turn on the determination of this issue.[33]
[33] R v Gordon-Smith, above n 18, at [24].
Rule 12(3)(b) reads:[34]
[34] Emphasis added.
(3) Pending the determination of an application for leave to appeal or an appeal, the court appealed from or the Court may, on an interlocutory
application,—
…
(b) grant any interim relief.
[28] Whether the High Court has the jurisdiction to grant interim relief in respect
of declaratory relief under r 12 of the Court of Appeal (Civil) Rules was recognised to
be a question of general and public importance by Isac J and the Crown.[35]
[35] Leave decision, above n 7, at [10].
[29] However, given the fact that the interim relief was only granted pending determination of the appeal, the outcome of this Court’s decision on the substantive appeal, and the effect of the Amendment Act, there are no parties affected by the issue
identified by the appellant.
While the jurisdictional issue is not without significance, it would be better left
to be decided in a case in which its resolution would affect the outcome of litigation
in concrete factual circumstances. It would not be an appropriate use of this Court’s
resources to determine the issue as an abstract question of law in the absence of parties
with a real interest in the outcome. This is particularly so in circumstances where the
exercise would be funded entirely out of the resources of the Crown.
Although the Court could exercise its discretion to hear the appeal, this would
amount to an advisory opinion, the provision of which is generally regarded as outside
of the Court’s function.[36] We do not consider the issue raised is so exceptional as to
[36] R v Gordon-Smith, above n 18, at [18].
justify this Court proceeding in that way.
In the circumstances, we are satisfied the appropriate course is to dismiss the
appeal on the basis that is moot.
Result
The appeal is dismissed as moot.
There is no order as to costs.
| Solicitors: |
Te Tari Ture o te Karauna | Crown Law Office, Wellington for first and second respondents
| Judgment: | 23 September 2024 at 11.00 am |
| (On the papers) |
JUDGMENT OF THE COURT
| A | The appeal is dismissed as moot. |
| B | There is no order as to costs. |
____________________________________________________________________
G (CA38/2023) v COMMISSIONER OF POLICE & ORS [2024] NZCA 472 [23 September 2024]
at [58], [72]–[73] and [101]–[111].
Tim Stephens and Sarah Armstrong Injunctions and Other Emergency Relief (New Zealand Law
Society, 2018) at 95–106 and 103–105.
Offenders (Management and Information) Act 2015 [ROMI Act], ss 3A and 3B.
n 9, sch 1, cl 9(c).
Royal Forest and Bird Protection Society of New Zealand Inc v Minister of Fisheries
[2021] NZHC 2282 at [12]–[14]; and Bayer New Zealand Ltd, above n 8, at [16].
679 at [89], citing Jessica Gorman and others McGechan on Procedure (looseleaf ed, Brookers) at
[HR15.1.04] and [HR15.1.05(1)].
the Home Department, ex parte Salem [1999] 1 AC 450 (HL) at 456–457 per Lord Slynn;
R v Gordon-Smith, above n 18, at [16]; and Baker v Hodder [2018] NZSC 78, [2019] 1 NZLR 94
[Baker v Hodder (SC)] at [32]. The discretion was considered limited to “public law cases” but
that is no longer the case.
Supreme Court in both cases referred to the policy factors outlined in Borowski v Canada
(Attorney General) [1989] 1 SCR 342 at 358–363.
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