Dermot Gregory Nottingham v T, K, L, R and H

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 216/00

BETWEEN	DERMOT GREGORY NOTTINGHAM
Applicant

AND	T, K, L, R and H
Respondents

Hearing:	19 March 2001
Coram:	Richardson P Gault J Thomas J
Appearances:	Applicant in person J Haigh QC for T M P Reed QC for K, L, R and H
Judgment:	26 March 2001

JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P

This is an application under s144(3) of the Summary Proceedings Act 1957 for special leave to appeal against the decision of Morris J in the High Court at Auckland dismissing an appeal against the decision of Judge Treston which, in turn, dismissed an application to the District Court to rescind an interim order for suppression of the names of the defendants in the proceedings.
Mr Nottingham instituted a private prosecution against the five defendants alleging conspiracy to commit odometer fraud. On 22 December 1998 there was a pre‑depositions hearing before Judge Clapham at which Mr Haigh QC for the defendants submitted that the proceedings were frivolous, spurious and vexatious, which Mr Nottingham has taken as accusing him of criminal conduct. Mr Nottingham was then represented by counsel and, by consent, on Mr Haigh's application, an order was made for interim suppression of the names of the defendants.
As had been foreshadowed, Mr Nottingham provided briefs of witnesses and tapes in support of the prosecution and applied to have the suppression order rescinded. That application came before Judge Treston on 27 May 1999. The Judge recorded Mr Nottingham's submission that the order was purely interim, that discovery had been completed by the furnishing of that material, and that, applying established principles governing name suppression, the order should be rescinded. Mr Haigh on behalf of the five defendants denied the conspiracy allegation and repeated the contention that the prosecution was frivolous, vexatious and spurious. It was only a month to depositions and T, one of the defendants, had documented health problems. A medical certificate was tendered and shown to Mr Nottingham but, by order of the court on Mr Haigh's application, he was not allowed to take a copy and it became a sealed exhibit.
Judge Treston referred to the terms of s140 of the Criminal Justice Act 1985 empowering the court to prohibit publication of names and to authorities governing its exercise. He expressly recognised that suppression should be granted only for compelling reasons. The Judge discussed relevant factors in the present case tending for and against suppression. He noted that as the prosecution conceded, medical certificates could certainly give grounds for suppression where publication of T's name might then have an adverse affect on his health, adding: "and although Mr Nottingham would not say so directly, it seems to me that he concedes that there may be a reason for continuation of suppression in relation to [T]".
The Judge concluded that it would be inappropriate to remove the order for suppression at that stage. It was only a month until depositions where the position would be considered once evidence had been given and one of the defendants had a documented health problem.
Mr Nottingham appealed to the High Court. Morris J refused Mr Nottingham leave to call further evidence and dealt with the appeal on the material before the District Court. He noted that Mr Nottingham conceded there might well have been in T's case grounds for suppression and rejected the criticism that Mr Nottingham had but a brief chance to look at the certificate: "A Judge saw it, assessed it and accepted it".
Morris J noted that the District Court Judge had set out the principles applicable to suppression applications and made detailed reference to the discretionary powers which he had to grant or refuse the order and the need, of course, for the public to be kept fully informed of what was happening in their courts. Morris J did not consider it had been established that the District Court Judge was wrong in the conclusions he reached. As well, the depositions were currently being heard and were to be completed shortly: "At the end of the depositions hearing there will, of course, be an application for suppression of names and the District Court Judge, whatever her decision may be will, by then, be fully appraised of the facts. In these circumstances I cannot see any impropriety or injustice in continuing the present suppression order".
The defendant respondent sought costs. The Judge could see no reason why costs should not follow the result and awarded $1,500, not, he said, as a penalty, but as a reasonable amount for preparation by each counsel and for their attendance to present argument, noting that Mr Nottingham had prepared detailed submissions and a large volume of authorities.
As happened, depositions ceased to be taken in August 1999 and have not since been concluded. There have been various ancillary proceedings, the most recent of some relevance being an application by Mr Nottingham, struck out by Randerson J as an abuse of process in a judgment delivered on 7 December 2000 and subject to appeal to this court, seeking to restrain Judge Bouchier from continuing to preside over the depositions hearing. Randerson J's judgment goes on to record at paras [60] and [61] that the District Court might well consider it appropriate to allocate another Judge to hear the application by the defendants for a stay of the private prosecution on the grounds of abuse of process and that, if the prosecution survived that application, the District Court Judge would need to consider Mr Nottingham's application that she should step aside.
Earlier, on 7 September 1999, Robertson J dismissed Mr Nottingham's application under s144 for leave to appeal to this court against Morris J's decision, recording shortly that there was no basis for granting leave.
On the application to this court for special leave to appeal Mr Nottingham filed submissions in support running to 81 pages, a primary affidavit and exhibits totalling some 540 pages, a further affidavit by Mr Nottingham's brother and exhibits, and Mr Nottingham's "reduced submissions" of 20 pages to be read in conjunction with the earlier supplied submissions.
By s144(3) of the Summary Proceedings Act, where the High Court has refused leave to appeal to this court the party concerned may apply for special leave to appeal against any determination of the High Court on a question of law arising on the appeal to that court , and the Court of Appeal may grant leave accordingly "if in the opinion of that court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision".
It is well settled that s144 is not intended to provide a second tier of appeal from decisions of the District Court. The stringent requirements of s144 must be satisfied and neither the determination of what comprises a question of law nor the question of whether that point of law raises a question of general or public importance is to be diluted (R v Slater [1997] 1 NZLR 211).
In the "reduced submissions" Mr Nottingham identified seven questions in bold type as follows:
Question 1
Is there a need for admissible evidence (on oath), or any evidence at all on application's [sic] for name suppression when the applications require compelling grounds?   (The health issue and the allegation of spurious, frivolous, vexatious, and malicious prosecution).
Question 2
Did the High Court Judge properly exercise a just discretion pursuant to s115, s119 of the Summary Proceedings Act, s14, s25(a), and 27 of the New Zealand Bill of Rights Act in refusing leave to the appellant to adduce evidence on oath in rebuttal of as yet wholly unsubstantiated allegations made by the respondents that the prosecution was 'spurious, frivolous, vexatious, and malicious', which allegations formed the basis of the decision in the District Court, and subsequently in the High Court?
Question 3
Was Morris J correct in ruling that the New Zealand Bill of Rights Act 1990 did not apply when considering the discretion of whether to grant name suppression in the District Court and should he have articulated this ruling in his decision due to its importance?
Question 4
Did Morris J properly consider whether there is any accurate way available to the prosecution to establish the actual readership of a publication that is sold and which contents may be otherwise distributed by way of the internet and other media unaware of the order and not bound by the order and, is this issue binding, relevant to the fact that is [sic] has been published.   S14 of the New Zealand Bill of Rights Act 1990?
Question 5
Did Morris J properly apply the use of his discretion when obviously applying a reverse onus to the prosecution to prove that its charges were not 'spurious, frivolous, vexatious, and brought with malice'?   See s115 and s211 of the Crimes Act 1961.
Question 6
Did Morris J properly apply the law as concerns costs in Criminal Cases when awarding a substantial costs award payable immediately on an appeal wherein he declined to allow evidence which he was aware the prosecution contended would have seen the allegations of the respondent, upon which he relied, rebutted, and thus the appeal allowed?
Question 7
Does Morris J's various findings and rulings, based on the fact that there was not actually any evidence whatsoever before him, disclose a perceived, apparent or actual bias in a Criminal proceeding?
We should add by way of explanation of question 3 that Mr Nottingham submitted (and he and his brother averred in their affidavits) that in the course of argument Morris J said that the Bill of Rights was "a load of bollocks". Mr Haigh suggested that the Judge was referring to Mr Nottingham's Bill of Rights argument.
Like Robertson J, we can see no basis for granting special leave to appeal to this court against Morris J's determination of the appeal against Judge Treston's decision. The interim order was initially made by consent. Judge Treston enunciated and applied well settled principles in considering and rejecting Mr Nottingham's application for its rescission. He was entitled to conclude, given the imminence of the depositions hearing and the health risks to one of the alleged conspirators, that the interim order should continue until after depositions when the position could be reviewed in the light of the evidence then before the court. Again, Morris J applied settled principles and he, too, was properly influenced by the expected closeness of the end of the depositions and the health of one of the defendants. The matters Mr Nottingham seeks to raise are not central to those crucial features of the interim suppression argument and we are not persuaded that there is a question of law involved here which meets the criteria for a second appeal. In that regard we are satisfied, for the reasons he gave, that Morris J was entitled to make the costs awards he did.
For these reasons the application for special leave to appeal is dismissed with costs to the parties represented by Mr Haigh QC and Mr Reed QC respectively of $1,500 in each case, together with all reasonable disbursements including any travel and accommodation expenses of counsel as fixed, if necessary, by the Registrar.
We record that Mr Haigh and Mr Reed acknowledged that it would be advantageous if a Judge other than Judge Bouchier dealt with their stay application.
Finally, we should record, as Mr Nottingham requested, that Mr Nottingham asked Gault J and Thomas J to "recuse" themselves from sitting on the appeal because of their participation in a previous unrelated case in which Mr Nottingham was a party and that the President ruled that there was no basis for them to do so. Nor did either Judge consider that they were disqualified from sitting.

Solicitors
Gellert Ivanson, Auckland, for respondents K, L, R and H

[2001] NZCA 108

26 March 2001