Gifford v District Court of New Zealand
[2021] NZHC 1258
•31 May 2021
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CIV-2020-406-14
[2021] NZHC 1258
UNDER the Judicial review Procedure Act 2016 IN THE MATTER
of an application for review
BETWEEN
MICHAEL HOWARD GIFFORD
Applicant
AND
THE DISTRICT COURT OF NEW ZEALAND
First Respondent
THE ATTORNEY-GENERAL OF NEW ZEALAND OF WELLINGTON
Second Respondent
Hearing: 17 May (via AVL) Appearances:
P J Shamy for Applicant
Appearance excused for First Respondent J M Webber for Second Respondent
Judgment:
31 May 2021
JUDGMENT OF ISAC J
[On strike-out application]
Introduction
[1] Mr Gifford has applied for judicial review of a decision of the District Court declining to dismiss charges against him under s 147 of the Criminal Procedure Act 2011 (the Act). The second respondent has applied to strike out the proceeding as an abuse of process.
GIFFORD v THE DISTRICT COURT OF NEW ZEALAND [2021] NZHC 1258 [31 May 2021]
[2] Mr Gifford is currently subject to criminal proceedings commenced by the Marlborough District Council (the Council) alleging various breaches of the Resource Management Act 1991 (RMA).1
[3] Mr Gifford challenged six of the seven charges he faces, principally on the basis they were laid outside the six-month timeframe prescribed by s 338(4) of the RMA. In two decisions the Judge (as she then was) granted Mr Gifford’s application in relation to three charges but dismissed it on the remaining three.2
[4] Mr Gifford’s application for review alleges that the District Court misapplied the law in relation to the charges it declined to dismiss in the First Decision. He says the Court made a wrong assessment of a reference in the charging documents to a specified date and there was an inconsistency of approach with the charge it dismissed. Secondly, he says the Judge applied the wrong standard of proof to her factual enquiry.
[5] I have concluded the application to strike-out the proceeding should be declined. I have reached this view for the following reasons:
(a)The relevant provisions of the Act do not clearly preclude judicial review of decisions of the District Court under s 147 of the Act. That view is supported by previous decisions of this Court, albeit they indicate the scope for review is narrow.
(b)There being no statutory bar to the proceeding, or any other relevant criticism raised, I do not think it is correct to describe it as an abuse of the Court’s process. Such an approach is not consistent with access to justice or the obligation of the Court to hear cases properly brought before it.
(c)The nub of the second respondent’s argument is that Mr Gifford’s claim is clearly untenable given the provisions in the Act preventing pre-trial appeals. In my view, the more appropriate procedure to advance such
1 Mr Gifford has elected trial by jury, so the prosecution is now in the hands of the Crown Solicitor.
2 R v Gifford [2018] NZDC 15725 [First Decision], and R v Gifford [2019] NZDC 17977 [Second Decision].
an argument is under the Court’s jurisdiction to grant summary judgment for a defendant rather than as an abuse of process.
(d)The criticisms of the use of judicial review where an appeal may be available later goes to the question of relief rather than jurisdiction to bring the claim.
(e)There appears to be a question of law which, at this stage, gives rise to a live controversy worthy of consideration at trial.
Background
[6] Grape marc, or pomace, is the solid waste left over from pressing grapes into wine.
[7] The charges arise as a consequence of the delivery of grape marc to a property owned by the plaintiff at Redwood Pass, Blenheim, and its storage there at two separate sites.3
[8] Over the years, the applicant’s property appears to have been used as a clean fill site and a compost facility. Grape marc has been stored both before the applicant purchased the property in late 20 December 2014, and after.4
[9] As the District Court noted, since February 2015 Council staff have been involved with the applicant in relation to the activities on the property.5 It is alleged that between February and June 2016, grape marc was stored on the property and, as a result, leachate from the marc may have entered either or both ground water and a nearby stream contrary to s 15(1)(b) and (d) of the RMA.
[10] The Council laid a total of seven charges against Mr Gifford on 8 November 2016. The first charge, which is not in issue in this proceeding, is a charge of breach of an abatement notice. I was advised by counsel that the essence of this charge was
3 First Decision, above n 2, at [8].
4 At [19].
5 At [20].
an alleged failure to remove the marc contrary to the requirements of an abatement notice.
[11]The remaining six charges relate to the two sites and allege:
(a)a discharge to land from an industrial or trade premises (being the locations where the grape marc was stored);
(b)a discharge to land in circumstances where a contaminant (the leachate from the grape marc) may have entered a nearby stream; and
(c)a discharge to land in circumstances where the leachate may have entered ground water.
[12] Mr Gifford applied for a discharge under s 147 against those six charges. He argued that the charging documents were not laid in time as required by s 338(4) of the RMA which, at the relevant time, provided:
Despite anything to the contrary in section 25 of the Criminal Procedure Act 2011, the limitation period in respect of an offence against subsection (1), (1A), or (1B) ends on the date that is 6 months after the date on which the contravention giving rise to the charge first became known, or should have become known, to the local authority or consent authority.
(emphasis added).
[13] There are two limbs to the enquiry under s 338(4): the first date the local authority had actual knowledge of the contravention giving rise to the charge, or alternatively the date it should have known of the contravention.
[14] In judgments dated 7 December 2018, and 4 November 2019, the Judge dismissed three of the charges.6 She found one charge to have been laid at a time when, on the evidence, she was satisfied that Council officers ought to have known of the contravention giving rise to the charge.7 Accordingly, she found that the charge had been laid out of time contrary to s 338(4) of the RMA.
6 First Decision and Second Decision, above n 2.
7 First Decision, above n 2, at [95].
[15] In relation to two further charges, the Judge found the Crown could not establish that the locations from which it was alleged the leachate was discharged constituted “industrial or trade premises”, which was a necessary ingredient of those charges.8
[16] However, the District Court was not satisfied that three remaining charges were filed out of time.9 Those charges are subject to the current application for judicial review. The essence of the challenge is contained in paragraphs 60 and 63 of the Mr Gifford’s statement of claim.
[17]Paragraph 60 pleads:
60.That the first respondent misapplied the law in terms of charge 2 inter alia:-
i.By failing to find that the reference to the 6th May 2016 as the date of knowledge in the charging document was of no significance when it was highly probative of the date of actual knowledge.
ii.By finding on the same facts that charge 1 was statute barred as being out of time when just as readily leachate may have made its way through the soil and river gravel and contaminate the Pukapuka Stream.
iii.By failing to consider that the charge itself referred to “may”, not the actual occurrence.
[18]And paragraph 63 of the statement of claim alleges:
63.That the first respondent failed to apply the appropriate onus and legal test inter alia:-
a.By finding that the matter was “finely balanced” yet has given the benefit of the doubt to the second respondent.
b.That the benefit of the doubt should have been given to the applicant as a matter of law as it was for the second respondent to prove that charges 3 and 4 were not statute barred.
c.That if the benefit of the doubt was given to the applicant charges 3 and 4 would have been found statute barred.
8 Second Decision, above n 2, at [42]–[44]. This finding was pursuant to s 15(1)(d) of the RMA, which provides “no person may discharge any … contaminant from any industrial trade premises onto or into lands”.
9 First Decision, above n 2, at [97] and [117].
The issue and the party’s submissions
[19] The issue is whether the proceeding ought to be struck out as an abuse of the Court’s process under r 15.1(d) of the High Court Rules, which provides:
15.1Dismissing or staying all or part of proceedings
(1)The court may strike out all or part of a pleading if it—
…
(d) is otherwise an abuse of the process of the court.
[20] The other grounds on which a proceeding may be struck out under r 15.1 are not raised by the second respondent. Unlike r 15.1(a), which is focussed on shortcomings within the pleading itself, r 15.1(d) looks to issues outside the substance of the claim that might nevertheless render it an abuse of process.
[21] There are no fixed categories of conduct r 15.1(d) applies to, but most commonly it involves the pursuit of proceedings brought with an improper motive, or attempts to obtain a collateral advantage beyond that legitimately gained from a court proceeding.10
[22]The following considerations are also relevant:11
(a)Generally, the Courts should exercise their discretion on matters properly brought before them.
(b)It is important to preserve freedom of access to the Courts.
(c)The Courts need to be vigilant that abuse of process claims are not advanced other than in clear and appropriate cases, and are not brought for tactical reasons.
10 Robert Osborne (ed) McGechan on Procedure (online ed, Thomson Reuters) at [HR15.1.05] citing Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [89].
11 Air National Corporate Ltd v Aiveo Holdings Ltd [2012] NZHC 602 at [31] (footnotes omitted). This case involved a stay application, but the principles are applicable in a strike-out context.
(d)Equally fundamentally, the Court should be alert to misuse of its processes and be prepared to exercise its power to stay where the interests of justice demand it.
(e)A stay will not be granted to debar a litigant from pursuing a genuine cause of action that is to be pursued in any event because there is an ulterior purpose as a desired by-product.
(f)The onus is on the party alleging abuse of process to show that the proceeding was brought for improper purpose. It is a heavy onus and one to be exercised only in the most exceptional circumstances.
(g)It is unnecessary to prove commission of an improper act to justify exercise of the power to stay. However, save in the clearest of cases, it will be necessary to point to some separate manifestation of the defendant’s intent in the form of an overt act such as a demand which identifies the true collateral purpose.
[23] In light of these principles, a question that immediately arises is the appropriateness of the use of the discretion under r 15.1(d) when it is not alleged the proceeding is brought for an improper purpose or seeks an illegitimate collateral advantage.
The parties’ submissions
[24] For the second respondent, Mr Webber relied on a line of authority which, he submits, indicates that there is now only a narrow basis on which this Court will entertain a proceeding seeking judicial review of a decision under s 147 of the Act.
[25] The principal authority cited by the second respondent is a judgment of Simon France J in DGN v Auckland District Court.12 In that case the applicant filed judicial review proceedings seeking to quash a decision to charge him.13 In essence the applicant alleged a conspiracy to bring criminal proceedings involving a range of
12 DGN v The Auckland, Manukau, Papakura & Waitakere District Courts [2016] NZHC 3338.
13 At [2].
individuals, including staff from the Real Estate Institute and disciplinary bodies, police officers and the Crown Solicitor.
[26] The Court observed that with the enactment of Criminal Procedure Act, the reluctance of the Courts to allow judicial review proceedings to interrupt the conduct of criminal prosecutions should now be reinforced.14 Compelling reasons to step outside the legislative scheme should be required, and a strike out application to assess whether the test could be met would be appropriate.15 The Court went on to observe:
[31] The Act also prescribes appeal rights. This Part of the Act reflects a careful consideration of what appeal rights should exist pre-trial and post verdict. Second appeal rights are carefully prescribed. Judicial review should not be seen as a way to circumvent that scheme. Sections 215 and 217 identify the provisions concerning which a pre-trial appeal may be brought. Section 147 is not included but the matters which underlay the s 147 application can of course be revisited as part of a conviction appeal. Further, s 296 provides for question of law appeals and may be available pre-trial.
…
[33] Further, in relation to the use of the strike out procedure, in my view there is little disincentive, and disruption is not prevented, if a full hearing of the application occurs, only to be dismissed with observations that relief will be rare. The present case provides an illustration. I was advised matters are on hold pending determination of this application. One of the aims of the Criminal Procedure Act, and its accompanying Criminal Procedure Rules 2012, is to provide firm timeframes to ensure that progress of these matters is achieved. The aim was generally to speed up the criminal processes. Allowing recourse to other processes outside the statutory scheme simply reintroduces unnecessary delay in circumstances where an alternative effective route for the same challenge is available.
(footnotes omitted)
[27]The observations in DGN have received subsequent support.16
[28] Mr Webber submitted that the present proceeding does not fit within the narrow category of case, such as Bennett, where judicial review has been permitted to
14 At [29].
15 At [29].
16 Angus v District Court [2017] NZHC 2879 at [29]; N v Auckland, Manukau, Papakura, and Waitakere District Courts [2017] NZCA 135, where at [10], the Court of Appeal observed “… the nature of the additional material serves only to reinforce the Judge’s view that judicial review is entirely inappropriate and an abuse of process …” See too Bennett v District Court [2020] NZHC 1730 at [24] and [29].
proceed to trial.17 He says Mr Gifford will have an opportunity to challenge his conviction in a post-trial appeal. All that is in issue is the timing of a review of the District Court’s decision declining to dismiss the charges; the Act deliberately prefers deferral of that inquiry until after trial. Here the judicial review proceeding is disruptive of the carefully tailored statutory appeal rights contained in the Act and contrary to that Act’s focus on avoiding delay and encouraging expedition.
[29] For Mr Gifford, Mr Shamy contended that the application engaged his client’s right to access to justice. It could not be said that the proceeding was an abuse of process given it raised an important question of law. None of the authorities relied on by the second respondent had considered the effect of s 27(2) of the New Zealand Bill of Rights Act 1990, which guarantees the right to apply, in accordance with law, for judicial review.18
[30] Equally, the authorities the second respondent relies on have not considered the effect of s 16 of the Judicial Review Procedure Act 2016, which explicitly preserves access to the Court’s review jurisdiction notwithstanding the availability of a right of appeal. Here, if successful, the proceeding will result in a trial involving one charge of breaching an abatement notice. The factual and legal issues will be greatly reduced, it is said, as will the cost and prejudice caused to Mr Gifford if he is required to proceed to a trial on the three additional charges which are the focus of this proceeding.
[31] During the course of argument, Mr Shamy was able to refine the ground of review identified in [63] of the statement of claim.19 The error of law that is intended to be advanced should the proceeding not be struck out is whether the Judge erred by applying what appears to be a civil standard of proof to the question whether the second respondent’s officers had constructive knowledge of the likely commission of the relevant offences. The basis for this argument appears in one paragraph of the First Decision, in which the Court noted that the “matter is a finely balanced one”.20
17 Bennett v District Court, above n 16.
18 As to the proviso in s 27(2), “in accordance with law”, see Seimer v Registrar of the Supreme Court [2019] NZHC 2345 at [15].
19 Noted above at [18].
20 First Decision, above n 2, at [116].
Mr Shamy proposes to argue that this indicated the District Court applied the wrong standard of proof.
[32] In reply, Mr Webber noted that the existence of a standard of proof had not been raised before the District Court and, regardless, the enquiry was one involving a “factual matrix”21 and the exercise of judgement, and was not susceptible to a standard of proof.
[33] In light of Mr Shamy’s submission at the hearing, it would seem that if the proceeding is to survive it will need to be reformulated in an amended statement of claim. And any such reformulation would need to clearly identify appropriate grounds of review. To the extent Mr Gifford might intend to invite the High Court to entertain a fresh assessment of the evidence and findings of the District Court, it is unlikely to be successful.
Is Mr Gifford’s proceeding an abuse of process?
[34] I have concluded that Mr Gifford’s proceeding is not an abuse of process for four reasons.
The Act does not proscribe the use of pre-trial judicial review
[35] First, the provisions of the Act do not preclude the availability of judicial review of decisions of the District Court under s 147 of the Act in appropriate cases. Both parties agreed that the remaining scope of review is very narrow. That position is consistent with the previous decisions of this Court mentioned above.22
[36] Without doubting the appropriateness of dismissal of proceedings that are clearly untenable, or an abuse of process, some care is needed. Where, as here, the Court is properly seized of a proceeding, in the absence of evidence that the proceeding has been brought for improper motive, or for an illegitimate collateral advantage, there
21 Mr Webber referred me to the decision of the District Court in Marlborough District Council v Growco Ltd [2017] NZDC 27498 at [66]–[71], where the Court applied a “factual matrix” approach requiring “all of the facts to be looked at — including the subjecting views of the officers and others where that is relevant — but to test that evidence objectively against the elements of the charge subsequently alleged against the defendants.”
22 Above, n 16.
is unlikely to be a clear basis on which to say that it is an abuse of process under r 15.1(d). Such an approach could deny a litigant access to justice outside the proper scope of a rule intended to protect the administration of justice by preventing an abuse of the Court’s process.23
[37] I have concluded that — on these facts — judicial review of a s 147 decision before trial is not such a collateral attack on the appeal procedures in the Act as to amount to an abuse of process.
Availability of appeal normally goes to relief rather than jurisdiction
[38] The second consideration that leads me to conclude the proceeding is not an abuse of process is that, in the context of judicial review, the availability of an appeal right goes to the question of relief rather than the threshold question of jurisdiction.24 Indeed, as noted, s 16(3)(a) of the Judicial Review Procedure Act explicitly confirms the Court’s jurisdiction even if the applicant has a right of appeal.
[39] I am not inclined to regard a consideration that normally goes to the discretion to grant relief as a factor excluding the Court’s judicial review jurisdiction, particularly where the statutory scheme does not do so by necessary implication.
[40] If that is correct, it seems wrong to strike out an application for judicial review as an abuse of process without considering all the factors that might inform whether or not relief ought to be granted. That consideration is best determined at trial.
[41] Of course, there may be cases where at an interlocutory stage the Court is persuaded that there is no prospect of relief being granted and, accordingly, the proceeding ought not continue to a trial. But such cases, in my view, are more appropriately dealt with under the Court’s jurisdiction to grant summary judgment for a defendant under r 12.2, where a different test and enquiry applies. And as noted at
23 For a consideration of the competing policies informing r 15.1, see Williams v New Zealand Police
[2021] NZHC 808 at [81]–[82] and [87].
24 See generally Philip A Joseph Constitutional and Administrative Law in New Zealand (5th ed, Thomson Reuters, Wellington, 2021) at 1291–1294.
[36] above, classifying the present case as an abuse of process seems an ill-fit given the principles informing the r 15.1 discretion.
There is a genuine question of law underpinning the proceeding
[42] A third consideration that leads me to conclude the current proceeding is not an abuse of process is that it appears to involve a genuine question of law. Put another way, there is merit in the underlying issue for determination. The case certainly does not involve a challenge to the discretion to prosecute, which has been a principal focus of this Court previously where striking out has been considered.25 Nor can this case, in terms of the merits, be put on all fours with Rowell v District Court.26
[43] Underlying the proceeding is a classification question. Specifically, how should a challenge to a prosecution based on a failure to commence it within time be characterised? On one view, it is a question of jurisdiction, and any finding need only be established on the balance of probabilities. But it also seems open to argue that the question whether charges are filed in time is no different from any other defence that can be raised to a prosecution. Once an evidential burden has been discharged by a defendant, it is for the prosecution to make the Court sure that the charges were filed in time.
[44] In this case, the District Court declined to dismiss charges 2, 4 and 5 based on an assessment of evidence. In relation to charge 2, the Court concluded the potential for leachate to enter the stream was “too remote to be considered a possibility on 6 May 2016.”27 In relation to charges 4 and 5, the Court noted the test it was required to consider was “whether there was sufficient information to establish the likelihood of the commission of the offence”. On that question the Court observed that questions of scale and degree of what the Council officers observed was relevant and, overall:28
While the matter is a finely balanced one, I consider that the quantities of grape marc the officers observed on 1 and 12 April, and the situation in which they observed it, was not sufficient for them to conclude that leachate from
25 See for example DGN v The Auckland, Manukau, Papakura & Waitakere District Courts, above n 12.
26 Rowell v District Court [2017] NZHC 2706.
27 First Decision, above n 2, at [96].
28 At [116].
the grape marc present was of concern. In my view, this conclusion was only able to be reached by June 2016.
[45]The issues that likely arise from this analysis are:
(a)whether the District Court applied the appropriate test (namely whether there was sufficient information to establish the likelihood of the commission of an offence)?
(b)whether there is a burden and standard of proof applicable to an enquiry under s 338(4) of the RMA?
(c)if so, what is that standard? And;
(d)did the District Court apply the appropriate standard?
[46] Those matters at first blush appear to be questions of law that go to substance of the District Court’s decision.
[47] In addition to those questions is the effect of s 232(4)(b) of the Act on the availability of judicial review in a case such as this. It provides:
In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[48] There is an argument that Parliament when enacting s 232 may well have had in mind placing on defendants the burden of a prosecution that is both unlawful and a nullity. While it will be for the Court hearing the substantive judicial review proceeding, this may be a factor indicating that pre-trial judicial review of decisions concerning prosecutions brought out of time is not available. On the other hand, it could be considered an unattractive outcome that a citizen should have to either plead guilty or be convicted of an offence — and all that goes with that — before they can challenge the lawfulness of the prosecution.
Continuation of a prosecution which is unlawful may arguably be an abuse of process
[49] A final factor leading me to decline the current application is this: if the relevant charging documents are a nullity because they were filed out of time, it seems to me that the continuation of the prosecution itself could be described as an abuse of process.29 It would seem a surprising outcome to strike out a proceeding as an abuse of process that itself might establish a criminal prosecution is unlawful.
Result
[50]I decline the second respondent’s application.
[51] Costs would ordinarily follow the event. If the parties are not able to reach agreement they may file memoranda. Any memorandum from the applicant should be limited to three pages and filed within 10 working days. A memorandum from the second respondent should be similarly brief and filed 10 working days thereafter.
Isac J
Solicitors:
Wisheart MacNab & Partners, Blenheim for First Respondent Crown Law Office, Wellington for First Respondent
Crown Solicitor, Nelson for Second Respondent
29 Subject to the issue noted at [48] in relation to the proper interpretation of s 232(4)(b) of the Act.
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