Commissioner of Police v Gong

[2020] NZHC 1667

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-0454

[2020] NZHC 1667

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

XIAOHUA GONG

Respondent

Hearing:	10 July 2020
Appearances:	M R Harborow and H E Macdonald for the Commissioner DPH Jones QC and G P Aspell for Mr Gong
Date of judgment:	10 July 2020

JUDGMENT OF JAGOSE J

[Leave to appeal]

This judgment was delivered by me on 10 July 2020 at 4.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

DPH Jones QC, Auckland Meredith Connell, Auckland

COMMISSIONER OF POLICE v GONG [2020] NZHC 1667 [10 July 2020]

[1]    Following my 25 October 2019 interim judgment,1 my 19 December 2019 judgment granted the Commissioner’s interlocutory application for particular discovery under r 8.20 of the High Court Rules 2016.2

[2]    Mr Gong now seeks leave to appeal against my decisions on the Commissioner’s interlocutory application. Pending determination of leave and any subsequent appeal, by consent, my orders have been stayed.3

Approach to applications for leave to appeal

[3]    Section 56(3) of the Senior Courts Act 2016 prohibits appeals of orders or decisions on interlocutory applications in civil proceedings without this Court’s leave. The object of requiring such leave is:4

… to limit the cases which may go on appeal in the interests of finality of litigation and the workload of the [appellate] Court, while preserving the integrity of the law and the interests of justice.

[4]    The Court of Appeal recently endorsed this Court’s approach to leave as a “filtering mechanism”,5 noting its own approach to be similar:6

… leave to appeal should only be granted where the significance or implications of an arguable error of fact or law, either for the particular case or for the applicant or as a matter of precedent, warrants the further delay which the appeal process would involve.

There is no reason for this Court’s approach to be seen any differently, and it is not.7 The question is if there is something justifying intermediate appeal.

1      Commissioner of Police v Gong [2019] NZHC 2735 (“interim judgment”).

2      Commissioner of Police v Gong [2019] NZHC 3441 (“final judgment”).

3      Commissioner of Police v Gong CIV 2017-404-0454, 18 February 2020 (minute).

4      Sandle v Stewart [1982] 1 NZLR 708 (CA) at 715.

5      Greendrake v District Court of New Zealand [2020] NZCA 122 at [6], citing Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].

6      At [7], citing Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17]; and Meates v Taylor (1992) 5 PRNZ 524 (CA) at 526. Similarly, Fairway Holdings Ltd v McCullagh [2018] NZCA 605 at [11]–[14]; and McLaren v McLaren [2018] NZCA 570 at [3]–[5].

7      Li v Chief Executive of Ministry of Business Innovation and Employment [2018] NZHC 1171, [2018] NZAR 1134 at [21]–[22].

Discussion

[5]    For Mr Gong, David Jones QC argues leave should be granted to enable intermediate appeal against my erring interpretation and application of r 8.20 – as “inapt for proceedings taken under the Criminal Proceeds (Recovery) Act 2009”, and “unusual[ly]” deployed here to obtain documents not ordinarily discoverable in the proceeding – requiring Mr Gong’s discovery of documents in unreasonable and oppressive scope.

[6]    As I said to counsel at the outset of the hearing, I was not enthusiastic about either the first or last grounds justifying intermediate appeal but, in my preliminary view, the novelty of the Commissioner’s reliance on pre-commencement discovery as necessary for ‘formulation’ of his claim – required by the statute to be commenced by highly-specified originating application and supporting affidavit8 – may cross that threshold.

[7]    For the Commissioner, Hannah Macdonald endorsed my lack of enthusiasm, and additionally argued there was nothing in pre-commencement discovery’s contended ‘novelty’ here to justify prior or separate appeal, all of which was capable of determination in a single appeal after this Court’s substantive decision. Citing Radio Works Ltd v Commissioner of Inland Revenue,9 any precedential value was as available on substantive appeal. In contemplating the justice of Mr Gong being required in the meantime to make pre-commencement discovery as I ordered, I should not disregard Mr Gong had offered to provide the information sought when interviewed in New Zealand, but then failed to do so and now resists its availability,10 in continuance of the pattern of his engagements with the Commissioner.

[8]    In response to my query of the knock-on consequences for trial determinations on the Commissioner’s pleading and admissible evidence, if pre-commencement discovery was held on substantive appeal not to be available, Ms Macdonald suggested the 2009 Act’s ss 93 and 94 illustrated a muscular legislative expectation proceedings should continue until any challenges to the Commissioner’s powers were determined,

8 Interim judgment at [19]–[20] and [22]; final judgment at [5].

9      Radio Works Ltd v Commissioner of Inland Revenue (2011) 25 NZTC 20-014 (HC) at [15].

10     Ginivan v Southern Response Earthquake Services Ltd [2020] NZHC 1469 at [50].

and even then s 93(4) anticipated use of information improperly obtained remained available if not unfair. She added the Court of Appeal exercised “particular restraint in relation to appeals from case management decisions, including in relation to discovery”.11

[9]    I agree with Mr Jones ss 93 and 94 should not be taken more widely than their express application to the Commissioner’s powers and duties under the Act. But the muscularity of the Act’s procedures is relevant and, as I have noted,12 the appellate Court’s workload also is material. Nothing in my contended errors under r 8.20, or my orders’ impact on Mr Gong, together or alone qualifies to justify intermediate appeal.

[10]   On balance, I also should not be diverted by the appeal’s prospectively interesting questions about:

(a)use of pre-commencement discovery’s usually surgical application;

(b)enabling the comprehensive pleading and evidence required by the Act;

(c)commencing claims to civil forfeiture by originating application;

(d)in which discovery is exceptional.13

It is unclear what now may be served by granting leave to appeal my decisions on the Commissioner’s interlocutory application. If there are substantive consequences, that is open to being addressed on substantive appeal. Without substantive consequences for the case, Mr Gong, or as a matter of precedent, leave should not be granted.

[11]   If I refuse leave, the Court of Appeal nonetheless may grant it.14 Even if leave again is refused, “nothing … prevents any point raised in the application for leave to appeal from being raised in an appeal against the substantive High Court decision”.15

11 James Hardie New Zealand Ltd v White [2020] NZCA 142 at [55].

12 At [3] above.

13 Fisk v X [2014] NZHC 2797 at [18]–[19], citing Groves v TSSN Ltd (in Liq) [2012] NZHC 2402, [2013] 1 NZLR 111 at [25], and Hong Kong v Shanghai Banking Corporation v Erceg (2010) 20 PRNZ 652 (HC).

14 Senior Courts Act 2016, s 56(5).

15 Section 56(6).

Granting leave now permits pointless additional effort and expense on intermediate appeal.

Result

[12]   Mr Gong’s applications dated 25 November 2019 and 10 February 2020 for leave to appeal my interim and final judgments are dismissed.

Costs

[13]   In my preliminary view, as the successful party, the Commissioner is entitled to 2B costs and disbursements for steps taken in opposing the applications, as they were of average complexity occupying a normal amount of time (so far as I can tell).

[14]   If that is not accepted by the parties, or they cannot otherwise agree, I reserve costs for determination on short memoranda of no more than five pages – annexing a single-page table setting out any contended allowable steps, time allocation, and daily recovery rate – to be filed and served by the Commissioner within ten working days of the date of this judgment, with any response and reply respectively to be filed within five working day intervals after service.

—Jagose J