Colman v Attorney-General - [2012] NZHC 2208

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV 2011-488-723
CIV 2011-488-724
CIV 2011-488-726

CIV 2011-488-727 [2012] NZHC 2208

BETWEEN JOHN COLMAN Appellant

ANDATTORNEY GENERAL Respondent

Hearing: 24 July 2012

Appearances: Appellant in person
R J Hoare for Respondent

Judgment: 30 August 2012

JUDGMENT OF KEANE J

This judgment was delivered by on 30 August 2012 at 9.30am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

Solicitors:
Crown Law Office, Wellington

JOHN COLMAN V ATTORNEY GENERAL HC WHA CIV 2011-488-723 [30 August 2012]

[1] John Colman seeks leave to appeal to the Court of Appeal Lang J's decision, dated 14 June 2012, upholding almost entirely a decision given in the District Court on 10 October 2011, striking out all but one of nine claims Mr Colman has brought against the Attorney-General alleging NZBORA rights abuses.

[2] Mr Colman contends that a grant of leave is warranted because, as a result of Lang J's decision, he is now denied redress for several serious breaches of his NZBORA rights, first by the police and more recently by the Courts. He contends that the Judge made as many as 39 errors of fact or law. He has abstracted six as of especial significance.

[3] Lang J, Mr Colman contends most basically, did not decide his sole issue on the appeal, whether the Judge at first instance had wrongly struck out his civil claims as collateral attacks on decisions given in the criminal jurisdiction. Lang J decided them on a basis never argued, that the breaches contended for were not seriously arguable.

[4] Thus, Mr Colman contends, his appeal was not heard and resolved on its merits. It was not heard at all. To obtain a genuine hearing he must have leave to appeal to the Court of Appeal. He also seeks leave to appeal Lang J's decision to award the Attorney-General costs on a category 2B basis, less 15 per cent, and disbursements.

[5] The Attorney-General opposes both applications, on the ground that neither discloses any question of law or fact capable of bona fide and serious argument, let alone any affecting an interest of sufficient public or private importance to outweigh the cost and delay of the further appeal.

Criminal proceedings

[6] As a result of an incident on 17 December 2007, while he was in his garden at his home, Mr Colman was arrested on a charge of disorderly conduct, a charge he denied and defended, that was dismissed when it was eventually heard on 16 June
2008.

[7] Seven days before that hearing, however, the police laid a second charge against Mr Colman arising from the same incident, alleging that Mr Colman had used insulting language. At the 16 June 2008 hearing Mr Colman was convicted of that second offence and ordered to come up for sentence if called upon within six months.

[8] On 28 October 2008 the Judge, who entered that conviction, granted Mr Colman a rehearing. He was not satisfied…

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 [2012] NZHC 2208
Case: [2012] NZHC 2208
Decision Date: 30 August 2012

CaseChat Overview and Summary

The High Court of New Zealand, in this case, heard an appeal by John Colman against the Attorney-General. Colman sought leave to appeal against the decision of Lang J, which upheld a District Court decision to strike out all but one of his nine claims of alleged breaches of the New Zealand Bill of Rights Act 1990 (NZBORA). The claims were against the Attorney-General for alleged NZBORA rights abuses by the police and the Courts. The primary legal issue in this case was whether the appellant, Mr. Colman, was entitled to leave to appeal to the Court of Appeal, given that Lang J's decision had already been made on the merits of the case. Mr. Colman argued that Lang J had failed to address the sole issue on appeal and had instead decided the case on a basis never argued, which was that the breaches contended for were not seriously arguable. Furthermore, he claimed that Lang J made as many as 39 errors of fact or law in his decision.

The Court of Appeal, in determining the application for leave to appeal, considered whether the appeal raised some question of law or fact capable of bona fide and serious argument, in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal. The Court found that Mr. Colman's challenge to Lang J's conclusion that all or most of the claims were collateral attacks in abuse of the Court's process or untenable was not seriously arguable, as the decisions taken in the reasoning and results were now beyond challenge. Additionally, the Court held that Mr. Colman's proposed appeal against the costs award was not genuinely arguable.

Ultimately, the High Court declined Mr. Colman's principal application for leave to appeal, as well as his second application concerning the costs award. The Court found that the appellant's complaints were beyond argument, and therefore, not deserving of a grant of leave to appeal.

Orders