Colman v Attorney-General - [2013] NZCA 92

IN THE COURT OF APPEAL OF NEW ZEALAND

CA598/2012
[2013] NZCA 92

BETWEEN JOHN COLMAN
Applicant

AND THE ATTORNEY-GENERAL
Respondent

Hearing: 18 March 2013 (by Teleconference)

Court: Randerson, Harrison and White JJ

Counsel: Applicant in Person
C Griffin for Respondent

Judgment: 27 March 2013 at 4:00pm

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

B The respondent is entitled to costs against the appellant for a standard application on a Band A basis with usual disbursements.

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REASONS

(Given by Randerson J)

Introduction

The applicant Mr Colman was arrested in 2007 and charged with two criminal offences. A charge of disorderly behaviour was ultimately dismissed. After an appeal, he was discharged without conviction by Allan J on 22 December 2009 on a charge of using insulting language.[1] In the course of this process, he has had a number of court appearances and a prolonged series of appeals.
[1]Colman v Police HC Whangarei, CRI-2009-488-09, 22 December 2009.
Mr Colman later initiated nine sets of civil proceedings in the District Court claiming that his rights under the New Zealand Bill of Rights Act 1990 (NZBORA) had been breached by officers of the New Zealand Police and members of the judiciary through their involvement with his criminal charges.
On 10 October 2011, Judge de Ridder struck out eight of his nine claims.[2] The ninth claim (CIV-2001-088-104) related to an alleged failure by the police to arrange medical attention for Mr Colman. This claim was permitted to proceed but the District Court Judge observed that the notice of claim would require substantial amendment.
[2]Colman v Attorney-General DC Whangarei CIV 2011-88-104, 194, 195, 203, 211, 217, 234, 240 and 264, 10 October 2011.
Mr Colman then appealed to the High Court against the decision of Judge de Ridder striking out eight of his claims. On 14 June 2012, Lang J dismissed Mr Colman’s appeal save that he reinstated another of Mr Colman’s claims (CIV-2011-088-195). This related to an alleged failure by the police to notify Mr Colman of the second charge he faced.[3]
[3]Colman v Attorney-General [2012] NZHC 1343, 14 June 2012.
Mr Colman then sought leave to appeal to this court against Lang J’s decision. His application for leave was declined by Keane J on 30 August 2012.[4]
[4]Colman v Attorney-General [2012] NZHC 2208, 30 August 2012.
Mr Colman now seeks leave pursuant to s 67(2) of the Judicature Act 1908 from this Court to appeal against Lang J’s decision. The respondent opposes the application but has not appealed against the decisions in the lower courts permitting Mr Colman to proceed with two of his civil claims. Subject to any necessary amendment of the pleadings, Mr Colman is at liberty to proceed with the substantive hearing of those claims.
The application for leave before us was conducted by teleconference after advice was received from Mr Colman that he could not afford to travel from Whangarei to Wellington for the hearing nor the cost…

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] NZCA 92
Case: [2013] NZCA 92
Decision Date: 27 March 2013

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, John Colman sought leave to appeal against a decision of Lang J in the High Court. The application was opposed by the Attorney-General. Mr Colman was arrested in 2007 and charged with criminal offences, but was ultimately discharged without conviction on one charge. He initiated civil proceedings claiming that his rights under the New Zealand Bill of Rights Act 1990 had been breached. The District Court struck out eight of his claims, but one claim was allowed to proceed. Mr Colman appealed against the decision striking out eight claims, and Lang J reinstated one of the claims. Mr Colman sought leave to appeal to the Court of Appeal against Lang J's decision.

The court considered the grounds for the application and found that Mr Colman had no reasonable prospect of success in pursuing any of the claims. The court found that the civil proceedings were an abuse of process through collateral attack on the criminal proceedings and that there was no tenable basis for challenging the High Court's conclusions. The court also found that Mr Colman's contention that he had a right to bring claims under the New Zealand Bill of Rights Act was misconceived, and that the double jeopardy argument was not arguable. The court found that there were no questions of law or fact of sufficient importance to warrant a further appeal. The application for leave to appeal was dismissed and the respondent was entitled to costs.

Orders