[1] The applicant filed nine separate sets of proceedings in the District Court against the Attorney-General. These arise out of an incident which occurred on
17 December 2007 and resulted in the applicant being arrested and charged with disorderly conduct. Subsequently, a second information was laid. This alleged the use of insulting language. The applicant was not aware of the second information and this resulted in a procedural imbroglio leading to much litigation. In the proceedings filed in the District Court, the applicant seeks relief under the New Zealand Bill of Rights Act 1990 in relation to events surrounding his arrest and
the subsequent prosecution and later appeal.

COLMAN v ATTORNEY-GENERAL SC 34/2013 [17 May 2013]

[2] In the District Court all claims were struck out, save for one which related to the arrest.1 The Judge saw the other claims as “a collateral attack on previous decisions of the Court”.2 The applicant’s appeal to the High Court was successful in relation to a claim focussing on the failure of the police to inform him of the laying of the second information but was otherwise unsuccessful.3 The High Court Judge considered that the other claims were either an abuse of the process of the Court (as amounting to a collateral attack on earlier judgments) or were otherwise not reasonably arguable. Applications for leave to appeal to the Court of Appeal against the High Court judgment were later declined by both the High Court4 and Court of Appeal.5

[3] He now seeks leave to appeal to this Court against the substantive High Court decision.6

[4] Section 7(b) of the Supreme Court Act 2003 precludes appeal to this Court against a decision of the Court of Appeal to refuse leave to appeal. But – and contrary to the submission made on behalf of the Attorney-General – this Court nonetheless has jurisdiction to grant leave to appeal against the High Court judgment, albeit that it will only do so if there are compelling circumstances which
warrant the circumvention of the s 7(b) jurisdictional limitation.7 As well s 14 of the

Supreme Court Act 2003, which deals generally with leap-frog appeals, provides that leave to appeal should be granted only if the Court is satisfied that there are “exceptional circumstances” which justify taking the proposed appeal. And, of
course, an applicant must also meet the s 13 criteria.

1      Colman v Attorney-General DC Whangarei CIV-2011-088-104, 10 October 2011.
2 At [9].
3      Colman v Attorney-General [2012] NZHC 1343
4      Colman v Attorney-General [2012] NZHC 2208.
5      Colman v Attorney-General [2013] NZCA 92.
6      The application for leave to appeal is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Colman v Attorney-General

Details

AGLC: Colman v Attorney-General [2013] NZSC 52
Case: [2013] NZSC 52
Decision Date: 17 May 2013

CaseChat Overview and Summary

In the case of Colman v Attorney-General, the applicant, John Colman, filed nine separate sets of proceedings against the Attorney-General in the District Court, stemming from an incident that occurred in December 2007. The proceedings sought relief under the New Zealand Bill of Rights Act 1990 in relation to events surrounding his arrest and subsequent prosecution and appeal. The District Court struck out all claims except for one relating to the arrest. The applicant’s appeal to the High Court was partially successful but ultimately unsuccessful, and further appeals to the Court of Appeal were also dismissed. Now, the applicant seeks leave to appeal to the Supreme Court against the High Court's decision.

The primary legal issue in this case was whether the Supreme Court should grant leave to appeal against the High Court's decision, despite the jurisdictional limitations set out in the Supreme Court Act 2003. The Supreme Court had to determine if there were compelling or exceptional circumstances that warranted allowing a leap-frog appeal. Additionally, the court had to assess the merits of the applicant's claims, particularly whether they amounted to a collateral attack on previous judicial decisions or if they were reasonably arguable.

The Supreme Court held that there were no compelling or exceptional circumstances that justified allowing a leap-frog appeal. The court noted that the applicant's claims primarily focused on judicial conduct and challenged events that had already been judicially determined in previous proceedings. The court was not persuaded that there was an obvious error in the approach taken by the High Court and Court of Appeal. Furthermore, the court acknowledged the applicant's dissatisfaction with the costs awards made against him but emphasised that the costs rules typically follow the event. The applicant had not come close to persuading the Supreme Court to take the exceptional course of allowing a leap-frog appeal.

The Supreme Court dismissed the application for leave to appeal. This decision was based on the understanding that the applicant was not deprived of his day in court, as he was still entitled to go to trial on his complaints relating to the arrest and the failure to notify him of the laying of the second information. The court also noted that the applicant's unusual litigation strategy and the numerous allegations advanced had resulted in costs orders being made against him.

Orders