Crequer v Deputy Registrar, Court of Appeal

[2025] NZHC 425

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2025-485-34

[2025] NZHC 425

UNDER

the Judicial Review Procedure Act 2016, the Criminal Procedure Act 2011, the Senior Courts Act 2016, and the Court of Appeal (Criminal) Rules 2001

IN THE MATTER

of a review of a High Court Registrar’s decision to decline to accept for filing an application for judicial review

BETWEEN

DAVID OWEN CREQUER

Applicant

AND

DEPUTY REGISTRAR—COURT OF APPEAL

Respondent

Hearing:	On the Papers
Counsel	Applicant in Person
Judgment:	7 March 2025

JUDGMENT OF McQUEEN J

[1]                 On 19 December 2024, Mr Crequer filed an application for review of the decision of the Wellington High Court Registrar (the High Court Registrar) to refuse his document for filing. The document that was refused for filing was a statement of claim seeking judicial review of the decision of the Deputy Registrar of the Court of Appeal (the Deputy Registrar) to not accept an appeal for filing.

[2]I decline the application for review, for the following reasons.

CREQUER v DEPUTY REGISTRAR—COURT OF APPEAL [2025] NZHC 425 [7 March 2025]

Background

[3]                 On 4 May 2023, two Justices of the Peace found Mr Crequer guilty of infringing against r 2.3(1)(f) of the Land Transport (Road User) Rules 2004 by driving his vehicle in a bus lane.1

[4]                 Mr Crequer appealed this decision to the District Court. On 16 January 2024, Judge Ruth dismissed the appeal, finding Mr Crequer’s defence—namely that a turning car amounted to a road obstruction justifying his use of the bus lane—to be untenable.2

[5]                 Mr Crequer then applied for leave to bring a second appeal to the High Court. On 7 November 2024, Robinson J granted leave to appeal but dismissed the substantive appeal.3 The Judge agreed with Judge Ruth that a turning car did not amount to a road obstruction. His Honour also found that in any event, the relevant rule only permits drivers to use special vehicle lanes (here a bus lane) when “it is impracticable to proceed” because of the road obstruction. Justice Robinson concluded that even if the stopped vehicle was a road obstruction, once Mr Crequer had passed the vehicle, he would have been obliged to leave the bus lane and return to the lane on which he was lawfully driving, which he did not do.

[6]                 Mr Crequer then made a further application to the High Court for special leave to appeal to the Court of Appeal. Mr Crequer relied on s 60(1) and subs (2) of the Senior Courts Act 2016 (neither of which refer to an application for special leave). On 9 December 2024, Eaton J dismissed the application.4 His Honour said that because s 242 of the Criminal Procedure Act 2011 provides that every determination of a second criminal appeal by the High Court is final, there was no jurisdiction for leave, or special leave, to be granted to Mr Crequer to pursue a third appeal, either from the High Court or the Court of Appeal.

1      Christchurch City Council v Crequer DC Christchurch CRI-2023-009-002579, 4 May 2023.

2      Crequer v Christchurch City Council [2024] NZDC 777.

3      Crequer v Christchurch City Council [2024] NZHC 3284.

4      Crequer v Christchurch City Council [2024] NZHC 3725.

[7]                 On 5 December 2024, Mr Crequer also sought to file an application for special leave to appeal with the Court of Appeal registry. Mr Crequer was informed by the Deputy Registrar that s 60(1) of the Senior Courts Act does not apply,  rather, under  s 56(1)(b), the Court of Appeal may hear appeals under the Criminal Procedure Act. The Deputy Registrar further explained that due to s 242 of the Criminal Procedure Act, Mr Crequer had no further right of appeal and so the Court of Appeal was unable to accept his application for filing. The Deputy Registrar noted that Mr Crequer had a right to review the Deputy Registrar’s decision and any such application would be considered by a Judge of the Court of Appeal.

[8]                 Mr Crequer wrote back to the Deputy  Registrar,  suggesting  that  the  Deputy Registrar does not have jurisdiction to dismiss his application for special leave to appeal, by reference to r 10(2) of the Court of Appeal (Criminal) Rules 2001 (the Criminal Rules), which states that an application for leave to appeal is made once it is received in the Registry. Mr Crequer suggested that, having received the application, the Deputy Registrar was required by r 4 of the Criminal Rules to progress it and as there is no jurisdiction for the Deputy Registrar not to, there cannot be a right of review of a “non-decision”. Mr Crequer also said that the respondent (the Christchurch City Council) had acknowledged that the appeal in the High Court was only a first appeal of the matters introduced at the District Court appeal that were not part of the original proceeding before the Justices of the Peace.

[9]                 The Deputy Registrar advised Mr Crequer again that his application for leave to appeal had not been accepted for filing, as there is no further right of appeal, and that no further action would be taken on the matter unless Mr Crequer decided to seek a review of the Deputy Registrar’s decision.

[10]              On 16 December 2024, Mr Crequer sent a statement of claim seeking judicial review of the Deputy Registrar’s refusal to accept the application for leave to appeal to the Wellington High Court registry for filing. The essence of Mr Crequer’s claim is that the Deputy Registrar has no jurisdiction to decide that his application for leave to appeal is not filed, and their decision is not a decision of the Court of Appeal. Therefore, the matter is not properly before the Court of Appeal, and it is not open to a Court of Appeal judge to review a decision that is not before the Court and which

the Deputy Registrar has no jurisdiction to make. The relief sought by Mr Crequer is an order that the Deputy Registrar treat Mr Crequer’s application for special leave to appeal as filed or made, and progress it accordingly.

[11]              Later that day the Registrar of the Wellington High Court declined the statement of claim for filing (the High Court Registrar’s 16 December decision). In that decision, conveyed to Mr Crequer by email, the Registrar noted that the review of a registrar is to be performed by the judges of the court of that registrar (in this case the Court of Appeal) and stated that the actions of the senior courts cannot be judicially reviewed. The Registrar referred to (and attached a copy of) Siemer v Registrar, Supreme Court.5 The Registrar told Mr Crequer that the correct pathway was to review the decision of the Deputy Registrar under the Court of Appeal (Civil) Rules 2005 (the Civil Rules).

[12]              In response, on 19 December 2024, Mr Crequer filed an application for review of the High Court Registrar’s 16 December decision.

The application for review of the High Court Registrar’s decision

[13]              In his application for review of the High Court Registrar’s 16 December decision, Mr Crequer asserts that the availability of review by a judge of a registrar’s decision only applies to a decision that a registrar has jurisdiction to make. He says that the Deputy Registrar does not have jurisdiction to make any decision about whether a case should be progressed or not, as filing is not dependent on “anybody’s purported acceptance”.

[14]              Mr Crequer refers to r 10(2) of the  Criminal  Rules  which  provides  that  “an appeal is brought, or an application for leave to appeal is made, when the notice of appeal or the notice of application for leave to appeal, as the case may be, is received in the Registry”. He says his notice of application for leave to appeal is not before the Court of Appeal as the Deputy Registrar claims it has not been accepted for filing. He says no jurisdiction exists for a judge to review a decision that is not a court decision and does not relate to a matter before the court.

5      Siemer v Registrar, Supreme Court [2014] NZHC 1179 at [27]–[28].

[15]              Mr Crequer says the Civil Rules do not apply.  He  points  to  r 4  of  the  Civil Rules which provides that those Rules apply to all proceedings of the Court except proceedings to which the Criminal Rules apply. He also points to r 4 of the Criminal Rules which provides that those rules apply to applications for leave to appeal to which pt 6 of the Criminal Procedure Act  applies.  Mr Crequer  notes Eaton J’s comment that Mr Crequer’s rights of appeal are governed by subpt 3 of the Criminal Procedure Act,6 and says this is subpt 3 of pt 6, meaning the Criminal Rules are clearly applicable.

[16]              Mr Crequer says the fact the Criminal Rules do not contain any rules regarding powers for registrars nor the review of registrar’s decisions by judges indicates there are no such powers. He therefore argues the Court of Appeal has no jurisdiction to review a decision that has been made ultra vires, as there is no jurisdiction for such a decision to be made under the Criminal Rules. Mr Crequer describes the decision of the Deputy Registrar as “an ultra vires action of a Ministry of Justice operative” rather than an “action” of a senior court. Mr Crequer therefore says that the decision in Siemer referred to by the High Court Registrar is not applicable as it concerns the exercise by a registrar of a power that the registrar has “jurisdiction to exercise”.

[17]              In relation to his appeal being barred under s 242 of the Criminal Procedure Act, Mr Crequer says that the High Court appeal was only a first appeal of matters raised for the first time in the District Court. He says this means the Court of Appeal can find it has jurisdiction to give leave for a second appeal—or not. He therefore says that he may seek such leave from the Court of Appeal, and this is not a decision for the Deputy Registrar to make.

[18]              Mr Crequer contends there is no reason for the High Court to refuse his statement of claim for filing, as the Deputy Registrar’s refusal to accept his application for leave is not an action of a senior court. He reiterates that Siemer says it is not “actions” of courts but “decisions properly before the courts” that cannot be reviewed. Mr Crequer says that the effect of the High Court Registrar’s refusal to accept his

6      Crequer v Christchurch City Council, above n 4, at [4].

statement of claim for filing has been to prevent him from bringing this matter properly before the courts.

Discussion

[19]              Mr Crequer’s  application  for   review   of   the   High   Court   Registrar’s  16 December decision requires consideration of the following four issues:

(a)whether the High Court Registrar has the power to refuse Mr Crequer’s statement of claim for filing;

(b)whether the High Court Registrar was correct to refuse Mr Crequer’s statement of claim for filing;

(c)whether the High Court Registrar was correct in informing Mr Crequer that judicial review is not available against the senior courts; and

(d)whether the High Court Registrar was correct to refer Mr Crequer to the Civil Rules as governing the review of the Deputy Registrar’s decision in the Court of Appeal.

Does the High Court Registrar have the power to refuse Mr Crequer’s statement of claim for filing?

[20]              Mr Crequer does not challenge the High Court Registrar’s power to refuse his statement of claim for filing. The arguments he raises are instead focused on the Deputy Registrar’s refusal to accept his application for leave to appeal and the availability of review of the Deputy Registrar’s decision. Nonetheless, in the circumstances of this case, I consider it appropriate to address the issue.

[21]              Part 2 subpt 2 of the High Court Rules 2016 provides for registrars and confers certain jurisdiction and powers on them. A power for a High Court registrar to refuse to accept documents tendered for filing is not expressly included in these rules.

[22]              However, r 2.11(1)(b) of the High Court Rules provides that an affected party to a proceeding or an intended proceeding may apply to a Judge by interlocutory

application for a review of a Registrar’s refusal to file a document tendered for filing. Rule 2.11(2) then provides that the Judge may, on review, make any orders they think just.

[23]              Although the High Court Rules do not expressly provide for the ability of a registrar to refuse to file a document tendered for filing, as noted by McHerron J in Cosmo Holdings Ltd v van Dyk, a registrar’s powers are not limited to those in the High Court Rules.7 Section 34 of the Senior Courts Act provides that a registrar and a deputy registrar have the duties and powers necessary or desirable to ensure the efficient  and  effective  administration  of  the  business  of  the  High  Court.  Justice McHerron also observed:8

It is well-recognised that a Registrar has power to refuse to accept documents for filing either because they do not comply with the rules or otherwise are an abuse of the Court’s process or contrary to a Court direction.

[24]              To conclude that a registrar of the High Court does not have the power to refuse to file a document tendered for filing would result in immeasurable expense and delay being added to the judicial system by requiring a judge to consider every document tendered for filing.

[25]              I am satisfied the High Court Registrar has the power to refuse Mr Crequer’s statement of claim for filing.

Was the High Court Registrar correct to refuse to accept Mr Crequer’s statement of claim for filing?

[26]              Mr Crequer argues that the Deputy Registrar acted ultra vires by refusing to accept for filing his application for leave to appeal. He appears to argue that as a consequence, the High Court should judicially review the Deputy Registrar’s decision, conclude that the Deputy Registrar’s decision was unlawful and find that Mr Crequer’s application for leave to appeal should therefore be accepted for filing in the Court of Appeal.

7      Cosmo Holdings Ltd v van Dyk [2024] NZHC 1071 at [12].

8      At [13] citing LFDB v SM [2021] NZCA 445, (2021) 25 PRNZ 794; LFDB v SM [2021] NZSC 164; Muir v Commissioner of Inland Revenue [2017] NZHC 2082; and Re Howes Tindall & Associates Ltd (in liquidation) [1990] 2 NZLR 323.

[27]              However, this argument leads to an illogical result, that only where registrars have acted within their jurisdiction and powers can the judges of their court review their decisions. This cannot be correct. Mr Crequer’s assertion that the High Court should review the decision of the Deputy Registrar would also result in the High Court improperly interfering in the business of a more senior court, in breach of judicial comity.

[28]              As Clifford J held in Siemer, as a matter of principle, the exercise by the registrar of their powers (in that case the maintenance of the record of the Court’s proceedings) is to be reviewed by the judges of the specific court in question.9

[29]              As a result, I consider that it is for the judges of the Court of Appeal, not the judges of the High Court, to review the decision of the Deputy Registrar. The High Court does not have jurisdiction to review the Deputy Registrar’s decision to refuse to accept the filing of an application for leave to appeal.

[30]              The High Court Registrar correctly declined to accept Mr Crequer’s statement of claim and correctly pointed Mr Crequer towards filing an application for review of the Deputy Registrar’s decision at the Court of Appeal.

Was the High Court Registrar correct in informing Mr Crequer that judicial review is not available against the senior courts?

[31]              I do not accept Mr Crequer’s contention that the High Court Registrar was incorrect to state that judicial review is unavailable against the senior courts. In Siemer, Clifford J stated that judicial review was not available to challenge the actions of the higher courts.10 This principle has long been established, as allowing such reviews of those courts and their judges would be contrary to the principles of finality and legality.11

9      Siemer, above n 5, at [27].

10     Siemer, above n 5, at [28].

11 Navaratnam v High  Court  of  Auckland  [2022]  NZHC  371  at  [5]  citing  Young  v  Police  [2007] NZCA 339 at [25]; Nicholls v Registrar of the Court of Appeal [1998] 2 NZLR 385 (CA) at 414, 435 and 455; Bulmer v Attorney-General (1998) 12 PRNZ 316 (CA) at 318; Auckland District Court v Attorney-General [1993] 2 NZLR 129 (CA) at 133; and Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue [2014] NZCA 350 at [21].

[32]              Nor do I accept Mr Crequer’s argument that judicial review should be available as the Deputy Registrar’s decision was not a decision of the Court of Appeal. As made clear in Greer v Smith, registrars are officers of the Court.12  Section 64  of  the Senior Courts Act states that the registrar and a deputy registrar have the duties and powers necessary or desirable to ensure the efficient and effective administration of the business of the Court of Appeal. In refusing Mr Crequer’s application for filing, in my view, the Deputy Registrar was exercising their powers conferred under s 64. There was therefore a decision or action of the Court of Appeal, which is not amenable to judicial review.

Was the High Court Registrar correct in referring Mr Crequer to the Civil Rules?

[33]              As Mr Crequer states, the Civil Rules apply  to  all  proceedings  of  the  Court of Appeal, except those to which the Criminal Rules apply.13 The Criminal Rules apply to applications for leave to appeal to which pt 6 of the Criminal Procedure Act applies, and to steps incidental to such applications.14

[34]              The High Court Registrar therefore erred in referring Mr Crequer  to  the Civil Rules. The application that the Deputy Registrar rejected for filing was an application for leave to appeal against conviction, which falls under subpt 3 of pt 6 of the Criminal Procedure Act, and thus falls within the scope of the Criminal Rules. A review of the Deputy Registrar’s decision to refuse the application for filing is a step “incidental to such applications”.

[35]              While Mr Crequer is correct that the Criminal Rules do not expressly provide for the ability to review the decision of a registrar, his assertion that this means review of a registrar’s decisions regarding criminal matters is unavailable is unfounded. The power of judges to review decisions of registrars has long been recognised at common law.

12     Greer v Smith [2015] NZSC 196, (2015) 22 PRNZ 785 at [6].

13     Court of Appeal (Civil) Rules 2005, r 4.

14     Court of Appeal (Criminal) Rules 2001, r 4(1)(a) and (2).

[36]              In Greer, when considering access to Court records in the Supreme Court, William Young J stated that it is:15

…consistent with the inherent powers of the Judges of any court, that the Judges have the general right to direct and supervise the Registrar in relation to the business of the Court providing such direction and supervision is not inconsistent with the scheme of the [Supreme Court Act 2003] and  [Supreme Court Rules 2004].

[37]              In Slavich v R, the Supreme Court again affirmed it had a general supervisory jurisdiction in respect of the actions of its Registrar which is not confined to the statutory jurisdictions conferred by the Senior Courts Act.16

[38]              Perhaps most directly relevant to this case, in District Court at Christchurch v McDonald, Kós P (as he then was) observed that “the broadest realm of inherent judicial power likely lies in a court’s power to regulate its own procedures” and that “a fundamental aspect of that power is the judicial supervision and direction of registry staff in relation to the business of the court”.17 His Honour stated that “subject only to statutory constraint, it is of essence of a court that in the conduct of judicial business, its registrars are subject to judicial direction and their decisions are subject to judicial oversight and review”.18 His Honour confirmed that the inherent power of supervision enables judges to review the decisions of registrars where challenged, in the absence of a statutory basis for review.19

[39]              Consequently, the fact that the Criminal Rules do not expressly provide for the ability to review the decisions of registrars does not mean such a power does not exist. In my view, Mr Crequer is able to seek review of the Deputy Registrar’s decision at the Court of Appeal, and thus, as I have concluded above, the High Court Registrar was correct to refer him to that Court. However, I consider that it would promote access to justice for the Criminal Rules to expressly state that the review of the

15     Greer v Smith, above n 12, at [6].

16     Slavich v R [2020] NZSC 34 at [10].

17     District Court at Christchurch v McDonald [2021] NZCA 353, [2021] 3 NZLR 585 per Kós P at [31].

18 At [31].

19     At [33] citing Siemer v Deputy Registrar of the Supreme Court of New Zealand [2020] NZSC 135 at [9].

registrar’s decisions is available in that context, and this may be a matter to be considered in any future review of the Criminal Rules.

[40]              The Registrar’s error in referring to the application of the Civil Rules does not render the rest of their decision incorrect or invalid. As discussed above, the Registrar was correct to find the High Court does not have jurisdiction to accept Mr Crequer’s statement of claim for filing.

[41]              The issues Mr Crequer raises in respect of whether the Deputy Registrar was able to refuse and/or should have refused to accept his application for leave to appeal for filing are properly matters for the Court of Appeal rather than this Court. As stated by the High Court Registrar, the correct pathway for these matters to be considered is through Mr Crequer seeking review of the Deputy Registrar’s decision at that Court.

Result

[42]              Mr Crequer’s application for review of the Registrar’s decision to refuse to file his statement of claim is declined.

McQueen J