Caie v District Court, Pukekohe HC Auckland CIV 2009-404-7220

[2010] NZHC 916

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2009-404-007220

BETWEEN  ALWYN KEITH CAIE Appellant

ANDDISTRICT COURT, PUKEKOHE First Respondent

ANDNEW ZEALAND POLICE Second Respondent

Hearing:         2 June 2010

Appearances: Appellant Self-Represented

M A Woolford for the First and Second Respondents

Judgment:      11 June 2010

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 11 June 2010 at 10.00 am, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:   Meredith Connell P O Box 2213 Shortland Street Auckland 1140 for the First and Second Respondents

Copy To:    A K Caie (Appellant) Klondyke Road Onewhero R D 2 Tuakau

CAIE V DISTRICT COURT, PUKEKOHE AND ANOR HC AK CIV-2009-404-007220  11 June 2010

[1]      Mr Caie is judicially reviewing a decision of the District Court at Pukekohe. The decision under challenge is the refusal to hear an appeal Mr Caie sought to bring against the revocation of his firearms licence.

[2]      The first respondent, the District Court at Pukekohe, has filed notice that it will abide the judgment of this Court.   The second respondent, the New Zealand Police, opposes the judicial review application.

[3]      The proceedings are not as procedurally tidy as might be expected.  This is because Mr Caie is representing himself.  However, the second respondent accepts that it has a sufficient understanding of the case to enable it to proceed today. Mr Caie sought to have the hearing adjourned.  I refused his request, and my reasons for doing so are set out in a ruling dated 2 June 2010.

[4]      The issues for determination were refined by the parties during the hearing. The second respondent confined its opposition to an argument that the District Court was right in law to refuse to hear the appeal on the ground that it was moot, and that Mr Caie did not present as an exceptional case, which would justify an appellate court hearing an appeal that was moot.

[5]      The reasons for the District Court refusing to deal with Mr Caie’s appeal are set out in a written judgment dated 12 January 2009, which was the same day that the appeal was set down to be heard.

[6]      Mr Caie appeared for himself, and the New Zealand Police were represented by a Mr Burns.  The judgment records that Mr Caie was granted a firearms licence in

1995 which ran until 2005.  In 1998 the licence was revoked by an Inspector Walker of the New Zealand Police on the ground that Mr Caie was not a fit and proper person to hold a firearms licence.

[7]      Section  62  of  the  Arms  Act  1983  empowers  a  District  Court  to  either confirm, vary or reverse a decision to revoke a firearms licence.  The District Court refused to exercise the powers available to it under s 62 on the ground that Mr Caie’s firearms licence had expired in 2005.   Since the licence had expired, there was

nothing of substance that could be affected by a decision the District Court made under s 62.  The District Court noted that Mr Caie was looking for a determination that the revocation of the firearms licence was unlawful.  The District Court relied on a decision  of  the  Court  of  Appeal  to  find  that,  as  there  was  nothing  of  actual controversy between the parties which required a decision, the appeal would have been dismissed.

[8]      The issue for determination in this judicial review proceeding is whether or not the District Court has erred in law in dismissing Mr Caie’s appeal for the reasons it gave.

[9]      The background to this judicial review reveals that Mr Caie has been most distressed by the revocation of his firearms licence.   The events that led to the revocation were the subject of civil proceedings which Mr Caie brought against the New Zealand Police.  He enjoyed a substantial measure of success as he was able to establish in this Court, before Fisher J, that he was falsely imprisonend.   Mr Caie was awarded damages of $10,000, plus costs.  The success that Mr Caie enjoyed in his civil proceedings should go some way to mollify the sense of aggrievement he feels towards the police over their actions in 1998.  However, it seems that Mr Caie seeks further vindication in the form of a finding that his firearms licence was unlawfully revoked.

[10]     Mr Caie argues that s 62 of the Arms Act gives him an involiate right to be heard on an application to confirm, vary or reverse a decision to revoke a firearms licence.  He rejects any suggestion that the issue over this licence is now moot.  In this regard, he has referred me to Bryan A Gamer (eds) Blacks Law Dictionary

(9th ed, Thomson Reuters, 2009) which defines “moot” as meaning:

moot, adj. (16c) 1. Archaic. Open to argument; debatable. 2. Having no practical significance;  hypothetical  or  academic  <the  question  on  appeal became moot once the parties settled their case>. – mootness, n.

moot, vb. (bef. 12c) 1. Archaic. To raise or bring forward (a point or question) for discussion. 2. To render (a question) moot or of no practical significance.

[11]     One of the difficulties that Mr Caie has faced as a self-represented litigant is that  he  lacks  the  understanding  that  legally  trained  persons  have  of  the  broad textured nature of the law.   The law that is applied in this country (as in other countries that have adopted a common law system) is a combination of statute and judge made law.  Rights of appeal are provided in statute law.  But that is not the end of the matter.   When it comes to hearing the exercise of appeal rights, appellate courts have authority to regulate the way in which matters come before them.  This can include refusing to deal with matters which are considered to be an abuse of process.   One such process which appellate courts have always exercised control over is the decision of whether or not to hear appeals that are moot.  An appeal is considered to be moot when the outcome of the appeal will have no practical effect on the rights of the parties.  In this regard, the Supreme Court has recently stated in R v Gordon-Smith [2008] NZSC 56, [2009] 1 NZLR 721 at 16:

The question of whether this Court should hear an appeal which otherwise qualifies under statutory criteria for a grant of leave but is moot, is rather one of judicial policy.  In general, appellate courts do not decide appeals where the decision will have no practical effect on the rights of parties before the court, in relation to what has been at issue between them in lower courts. This is so even where the issue has become abstract only after leave to appeal has been given.  But in circumstances warranting an exception to that policy, provided the court has jurisdiction, it may exercise its discretion and hear an appeal on a moot question.

[12]     The  District  Court  has  an  inherent  power  to  control  its  process:  see Department of Social Welfare v Stewart [1990] 1 NZLR 697 (HC), and Watson v Clarke [1990] 1 NZLR 715 (HC). This would include appeals which come before it. It follows that it is open to the District Court, in an appeal under s 62 of the Arms Act, to refuse to hear the appeal on the ground that it is moot. The meaning I attribute to this word is taken from the Blacks Law Dictionary definition to which Mr Caie referred me: that is, something that has no practical significance, is hypothetical or academic.

[13]     The refusal to hear Mr Caie’s appeal on the ground that the issues to be determined were now moot was a decision taken in accordance with well established legal principles that are as much the law of this country as is s 62 of the Arms Act.

[14]     But did the facts before the District Court establish that the appeal was moot? The District Court was confronted with a request to hear an appeal on the revocation of a licence which had expired by the time the appeal had come for hearing.  Hence, there was no practical benefit for the parties in the District Court hearing the appeal. By effluxion of time, the licence had ceased to exist, and consequently there was nothing  the  District  Court  could  do  that  would  have  reinstated  the  licence.    A decision on the appeal could, therefore, have had no practical effect on the rights of Mr Caie.

[15]     The statement of the Supreme Court in Gordon-Smith acknowledges that there can be exceptional circumstances in which an appellate court may, in the interests of justice, exercise its discretion and hear an appeal that is moot.  This is more likely to occur when the determination of the appeal will affect more than the rights  of  the  parties  to  the  appeal,  or  there  is  some  other  public  utility in  the determination being made.

[16]     The District Court in Mr Caie’s case does not appear to have turned its mind to whether or not it was faced with an exceptional circumstance which would have justified it hearing the appeal, even though it was moot.  A decision to refuse to hear a moot appeal involves the exercise of judicial discretion.   By failing to turn his mind to the question of whether Mr Caie’s appeal fell within the category of exceptional  circumstances  that  would  cause  a  court  to  hear  a  moot  appeal,  the District Court Judge has failed to exercise his discretion properly.   Instead of assessing the matter before him on its merits, he has applied a general rule without giving thought to whether the exception to that rule might apply: see Practical Shooting Institute (NZ) Inc v Commissioner of Police [1992] 1 NZLR 709 (HC) at

712-713 in which Tipping J sets out the legal principles on the use and misuse of discretionary powers.

[17]     But does the error the District Court Judge committed leave his decision vulnerable to being set aside by this Court in the exercise of its powers of judicial review?  I have given consideration to the question of whether the revocation of the firearms licence has so damaged Mr Caie’s reputation that he should have the opportunity to challenge the lawfulness of the decision in an appeal, even though an

outcome in his favour can never result in the revoked licence being restored to him. In general, an unlawful decision to revoke a firearms licence may carry damaging reputational consequences for the holder of the licence.  It could make obtaining a new licence in the future more difficult.  Furthermore, as Mr Caie said in the course of the hearing, he wants to ensure that others are not affected by unlawful and wrongly made decisions to revoke firearms licences.  For this reason, he sees some public utility in his appeal being heard and determined.   I have given careful consideration to what Mr Caie has said.  However, I am satisfied that in his case, the evidence before me establishes that the circumstances of the revocation of Mr Caie’s firearms licence are unique to him.

[18]     First, there is nothing that is stated in the judgment of the District Court which could have a wider significance such that it would establish public policy reasons for justifying the hearing of a moot appeal.   Secondly, insofar as the circumstances surrounding the revocation of Mr Caie’s firearms licence have damaged his reputation, that damage will have been cured by successive events. Those are:

i)His success in the civil proceedings he brought against the police;

ii)The  passage  of  time  since  the  revocation  of  the  licence occurred; any detrimental impact the revocation had on his reputation will have lessened over the 12 years that have since passed; and

iii)      The  recent  issue  of  a  new  firearms  licence  to  him  on

13 January 2009; this is the clearest demonstration that the police  accept  that  he  is  a  fit  and  proper  person  to  hold  a firearms licence.

[19]     I can see nothing in the facts of Mr Caie’s case which could justify departing from the general approach appellate courts adopt when it comes to moot appeals. This  means  that  there  would  be  no  utility  in  sending  the  matter  back  to  the

District Court for it to reconsider because the outcome would be the same.  On any consideration of the matter, I am satisfied that the conclusion reached would be that the circumstances of Mr Caie’s case fall outside the category of exceptions to the general  approach  towards  moot  appeals.     This  means  that  the  error  of  the District Court Judge, in not turning his mind to consider whether to treat Mr Caie as an exceptional case,  does not warrant  the interference of this Court by way of judicial review.

[20]     Remedies in judicial review are discretionary.  In Bennett v Superintendent of

Rimutaka Prison HC Wellington CP86/02, 11 March 2003, Gendall J stated at [35]:

Usually the court will not give a remedy if it is useless to do so; see Fowler

& Rodrique Ltd v Attorney General [1987] 2 NZLR 56 (CA) per Casey J at p

78:

“… events have overtaken this application, rendering any order that the Court may make of academic interest only.  Remedies under the Judicature Amendment Act are discretionary and whether or not it would ever have been appropriate to make a declaration of invalidity in respect of the 1979 notice, it cannot be justified now”.

[21]     In this case the lack of utility in setting aside the District Court decision is borne  out  by events  subsequent  to  that  decision.    The  police  have  now  issued Mr Caie with a new firearms licence.   I have already found that any damage to Mr Caie’s  reputation  has  been  cured  by  the  successful  outcome  of  his  false imprisonment claim, which focused on events relevant to the loss of the licence, and by the issue of the new licence.  A decision on the merits of the revocation of the previous licence would be of academic interest only and serve no other purpose.

Result

[22]     Mr Caie has identified an error in the District Court’s process.  But that error does not warrant the remedial attention of this Court.  Accordingly, relief is denied.

Duffy J