Edwards v District Court at Lower Hutt
[2018] NZHC 1266
•31 May 2018
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE
CIV 2018-485-1
[2018] NZHC 1266
BETWEEN JOHN ANTHONY EDWARDS
Plaintiff
AND
DISTRICT COURT AT LOWER HUTT
Defendant
AND
WESTPAC NEW ZEALAND LIMITED
Party Directed to be Served
Hearing: 31 May 2018 Counsel:
Applicant in Person
No appearance for Respondent (appearance excused) M V Robinson for Party Directed to be Served
Judgment:
31 May 2018
JUDGMENT OF COOKE J
[1] Mr Edwards seeks to challenge, by way of judicial review, a decision of Judge Tompkins made on 8 November 2017 to reject for filing private prosecution charging documents filed by Mr Edwards. The rejection occurred under s 26 of the Criminal Procedure Act 2011.
[2] The District Court abides by the decision of this Court. Westpac New Zealand Ltd (Westpac) was directed to be served as the proposed defendant to Mr Edwards private prosecution, and it appeared by counsel today presenting the substantial opposition to Mr Edwards’ challenge.
EDWARDS v DISTRICT COURT AT LOWER HUTT [2018] NZHC 1266 [31 May 2018]
[3] Mr Edwards is a customer of Westpac. The proposed private prosecution arises from actions surrounding the bankruptcy of Mr Edwards, and in particular from funds subsequently deposited with Westpac by the Official Assignee which were surplus to the debts that were owing. Mr Edwards’ complaints relate to how that money was received, and then dealt with by Westpac. The amount deposited by the Official Assignee with Westpac appears to have been $74,247.41.
[4] Mr Edwards has initiated a number of proceedings and complaints in relation to this matter. On 30 May 2016, he sought to file a charging document with the District Court commencing a private prosecution. This document was rejected by a District Court Judge. On 1 June Mr Edwards tried again. This document was rejected by Judge Mill in a judgment dated 23 June 2016. Mr Edwards initially challenged this decision by way of judicial review (CIV 2016-485-526) but when the matter came before Collins J Mr Edwards advised he wished to discontinue the proceedings, and the Court then granted him leave to do so, and struck the proceedings out.1 Mr Edwards also commenced civil proceedings against Westpac (CIV 2017-485-735), but he then discontinued them on 24 October 2017.
[5] Between 30 October and 6 November 2017 Mr Edwards then filed further charging documents, or replacement charging documents, seeking to commence private prosecutions for alleged offences against ss 116, 219(1)(b), 220 and 240 of the Crimes Act 1961.
[6] On 8 November 2017, these were not accepted for filing by Judge Tompkins. The Judge’s minute records:
Charging documents are not to be accepted, following the Criminal Procedure Act 2011 s 26(1)(b) referral, as an abuse of process due to substantive similarity with the charging documents rejected by His Honour Judge Mill in Edwards v Westpac Banking Corporation (23 June 2016, Hutt Valley District Court).
1 Edwards v The District Court at Lower Hutt [2017] NZHC 2036.
[7] It is this decision that is challenged. Section 26 of the Criminal Procedure Act 2011 provides:
26 Private prosecutions
(1)If a person who is proposing to commence a private prosecution seeks to file a charging document, the Registrar may—
(a)accept the charging document for filing; or
(b)refer the matter to a District Court Judge for a direction that the person proposing to commence the proceeding file formal statements, and the exhibits referred to in those statements, that form the evidence that the person proposes to call at trial or such part of that evidence that the person considers is sufficient to justify a trial.
(2)The Registrar must refer formal statements and exhibits that are filed in accordance with subsection (1)(b) to a District Court Judge, who must determine whether the charging document should be accepted for filing.
(3)A Judge may issue a direction that a charging document must not be accepted for filing if he or she considers that—
(a)the evidence provided by the proposed private prosecutor in accordance with subsection (1)(b) is insufficient to justify a trial; or
(b)the proposed prosecution is otherwise an abuse of process.
(4)If the Judge determines under subsection (2) that the charging document should not be accepted for filing, the Registrar must—
(a)notify the proposed private prosecutor that the charging document will not be accepted for filing; and
(b)retain a copy of the proposed charging document.
(5)Nothing in this section limits the power of a Registrar to refuse to accept a charging document for want of form.
Grounds of challenge
[8] It is accepted that there is no right of appeal of a decision made under s 26, but that such decisions can be challenged by way of judicial review.
[9]Mr Edwards’ statement of claim identifies three grounds of challenge, namely:
(a)that Judge Tompkins’ decision was not in accordance with the requirements of s 110 of the District Courts Act 2016;
(b)that in finding a substantial similarity in the charging documents Judge Tompkins mistakenly addressed two documents dated 30 October 2017 which had been withdrawn; and
(c)that Judge Tompkins erred because the new charging documents dated 6 November 2017 specified new charges under different sections of the Crimes Act 1961.
(i)Failure to comply with the District Court Act
[10]Section 110 of the District Court Act provides:
110 Judge must record various matters
(1)The Judge at a hearing in a proceeding in which there is a right of appeal without leave must record or cause to be recorded, whether by way of transcript or otherwise, the following matters:
(a)the facts in evidence; and
(b)any question of law or equity raised at the hearing; and
(c)the Judge's decision and of his or her determination of the proceeding.
(2)On the application of a party to the proceeding, and on payment of the prescribed fee (if any), the Judge must ensure that a copy of the records, whether in hard copy or electronic form, is provided to that party.
(3)Subsection (2) applies whether or not a notice of appeal has been served.
[11] Mr Edwards’ argument is that the decision of Judge Tompkins had “general vagueness” about it, and that it did not identify the underlying factual matters.
[12] I do not accept that argument. Section 110(1)(a) does not apply as there were no facts in evidence. A charging document is an initiating document that is not accompanied by evidence. In terms of s 110(1)(b) Judge Tompkins’ decision clearly identifies the issue of law being addressed – that is, abuse of process in accordance with s 26(3)(b) of the Criminal Procedure Act 2011. In terms of s 110(1)(c) the Judge’s decision on that issue is outlined – namely that the proposed prosecution was an abuse of process because of its substantial similarity with an earlier proposed prosecution that had been rejected by the District Court. It is tolerably clear what was decided and why. It follows that s 110 has been complied with in the circumstances of this case.
(ii)Error of fact
[13] Mr Edwards further complains that Judge Tompkins mistakenly addressed the charging documents dated 30 October 2017 which he had withdrawn and replaced with charging documents dated 6 November 2017.
[14] The basis of that submission is that Judge Tompkins’ decision was initially handwritten on Mr Edwards letter of 30 October 2017 which enclosed the then charging documents, rather than his letter of 6 November 2017 with the replacements.
[15] I am not prepared to infer any error of that kind simply because Judge Tompkins recorded his decision on the earlier letter. Judge Tompkins’ decision was made on 8 November after the amending documents had been received. Moreover, the Judge’s decision did not turn on the precise charging documents in issue, but on the fact that the allegations were substantially similar to those in the charging documents initially rejected. That is the case whichever charging documents you look at. For that reason, I reject this ground of challenge.
(iii)Error of law
[16] Finally, Mr Edwards challenges Judge Tompkins’ decision on the basis that the 6 November 2017 charging documents specified two new charges under different sections of the Crimes Act 1961. Mr Edwards says that the addition of valid new charges cannot be an abuse of process.
[17] It is true that the 6 November charging documents identified different alleged offences against s 116 and s 240 of the Crimes Act 1961. But they still relate to the same conduct of Westpac that was criticised by Mr Edwards. The particular provisions may not have been the subject of the initial charges, but it is the same conduct that is in issue. Judge Tompkins’ decision did not turn on the precise charges involved, but more generally on the new documents having “substantive similarity” with the original charging documents. Accordingly, I reject this ground of challenge as well.
[18]It follows that Mr Edwards judicial review application is dismissed.
[19] In advancing his submissions, Mr Edwards emphasised the constitutional importance of the right to initiate a private prosecution. I accept that the right involves an important safeguard arising from the state’s otherwise complete control of prosecutions. But I also accept Mr Robinson’s submission that there is an equally important check to prevent the power of private prosecution being used inappropriately or oppressively.2 That check is encapsulated in the ability of a District Court Judge to prevent a prosecution being filed, including when it would be an abuse of process. That would arise in circumstances such as the present where a Court has already determined that charges relating to conduct should not be allowed to proceed.
[20] Mr Thompson sought costs on behalf of Westpac. Westpac has been the substantial respondent to this challenge and is duly entitled to costs on a 2A basis, together with any reasonable disbursements to be fixed by the Registrar if they cannot be agreed.
2 See Taka v District Court at Auckland [2015] NZHC 972 at [12]–[17] and Mitchell v Porirua District Court & Ors [2017] NZHC 1331 at [73]. I note that the misstep described in Mitchell, which may not be compulsory, is not raised here.
[21] I also record that during the hearing Westpac enquired, through the Court, what Mr Edwards needed to have the ongoing disputes between him and Westpac resolved. Counsel advised that Westpac has been trying to return Mr Edwards’ money to him. In response, Mr Edwards indicated that he needed to be awarded damages, including special damages, and that the amount was growing, but that it involved millions.
Cooke J
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