Greendrake v District Court of New Zealand

[2020] NZCA 122

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA574/2019
 [2020] NZCA 122

BETWEEN	EUGENE ANTHONY GREENDRAKE Applicant
AND	THE DISTRICT COURT OF NEW ZEALAND Respondent

Court:	Brown and Gilbert JJ
Counsel:	Applicant in person R W Donnelly as counsel assisting No appearance for Respondent
Judgment: (On the papers)	28 April 2020 at 10.30 am

JUDGMENT OF THE COURT

The application for leave to appeal is declined. 

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

1. In a judicial review proceeding of a District Court decision Dunningham J made an order for joinder of an additional respondent.[1]  An application under s 56(3) of the Senior Courts Act 2016 (the Act) for leave to appeal from the joinder decision was declined by the High Court.[2]  Leave is now sought from this Court under s 56(5) of the Act to bring an appeal against the joinder decision.

Background

[1]Greendrake v District Court of New Zealand [2019] NZHC 1680 (Joinder decision).

[2]Greendrake v District Court of New Zealand [2019] NZHC 2504 (Leave decision).

1. Mr Greendrake sought to file charging documents in the District Court in relation to a private prosecution against Mr McConnochie pursuant to s 26 of the Criminal Procedure Act 2011.  In a decision dated 15 October 2018 the District Court refused to accept those documents for filing.[3]

   [3]Greendrake v McConnochie DC Invercargill CRI-2018-025-1593, 15 October 2018.

2. Mr Greendrake then commenced a proceeding for judicial review of the District Court’s decision declining to accept the charging documents for filing.  The District Court was named as the respondent to that proceeding.  It abided the decision of the High Court and was excused from further attendance.

3. In the absence of an active respondent, Mr Donnelly was appointed as counsel to assist and to act as a contradictor in order that the review proceeding could be fully argued.  Mr Donnelly raised the issue whether, being the proposed defendant to the charges, Mr McConnochie should be joined as a respondent in the judicial review proceeding pursuant to s 9(1)(b) of the Judicial Review Procedure Act 2016. Dunningham J accepted that that was an appropriate course in the circumstances of the case.

4. The joinder decision of Dunningham J is the subject of the present application for leave to appeal.  Mr Donnelly was appointed as counsel assisting this Court in relation to the proposed appeal.

Relevant law

1. In Finewood Upholstery Ltd v Vaughan, to which Dunningham J referred to in the leave decision, Fitzgerald J appropriately observed that the requirement for leave to appeal should serve as a filtering mechanism to ensure that unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to either the parties or more generally, do not unnecessarily delay the proceedings in which the orders were made.[4]  The following considerations were recognised as relevant on an application for leave to appeal:

   (a)       a high threshold exists;

   (b)       the applicant must identify an arguable error of law or fact;

   (c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;

   (d)      the circumstances must warrant incurring further delay; and

   (e) the ultimate question is whether the interests of justice are served by granting leave.

   [4]Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].

2. This Court in Ngai Te Hapu Inc v Bay of Plenty Regional Council[5] indicated that considerations similar to the principles applicable to applications under the former s 24G of the Judicature Act 1908, as explained in Meates v Taylor [Leave],[6] apply to applications under s 56(5), stating:

   We agree that 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.

Discussion

[5]Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291.

[6]Meates v Taylor (1992) 5 PRNZ 524 (CA) at 526.

1. In his application to this Court for leave Mr Greendrake identifies the relevant question of law in the following way:

   The Court of Appeal should grant the appellant leave to appeal because of the public (precedential) importance of a question of law whether the principles of joinder for potentially affected parties in judicial review proceedings dominate over the principles of criminal procedure that do not give proposed criminal defendants rights to be heard before they are charged.

2. In his written submissions in support of the application he elaborates on the nature of the question in this way:

   [3]       On the one side of the scale there is a proposed criminal defendant (Mr McConnochie) who is potentially affected by the outcome of the ongoing judicial review proceeding:  should the proposed charges be accepted for filing, he would have to defend himself in a criminal court.  The High Court adopts the general approach that potentially affected parties in judicial proceedings can be joined.

   [4]       On the other side of the scale, the criminal law explicitly does not grant such proposed defendants any rights to defend themselves before charges are laid:  granting such rights is generally seen inconsistent with the overall statutory scheme and the procedures spelled out within s 26 [of the Act].

   [5]       The question for the Court of Appeal is to balance the two sides of the scale and determine whether, in general, the criminal justice system should be disrupted by allowing proposed criminal defendants to defend themselves in Civil (Judicial Review) proceedings just because they are potentially affected by the prospects of having to defend themselves in a criminal court.

3. Mr Greendrake explains that the appeal is sought in the interests of all members of the public who may have to seek justice by way of private prosecution in order to make it clear that, barring exceptional circumstances, there is no place for proposed criminal defendants in the review of refusal to accept charges under s 26 of the Criminal Procedure Act.  He submits that the appeal is sought in the interests of justice to preserve the integrity of the criminal justice system by allowing criminal defendants to defend themselves only within the criminal procedure.

4. In response to the submissions of Mr Donnelly, Mr Greendrake contends that the interests of a proposed defendant can and should be protected in the course of criminal procedure such as by applying to dismiss the charges under s 147 of the Criminal Procedure Act.  However, he described the protection of proposed defendants’ interests in the course of judicial review as a perversion of criminal justice warranting this Court’s review of the joinder decision.

Discussion

1. We agree with Mr Donnelly’s submission that Mr Greendrake’s argument conflates the issue of a proposed defendant’s right to be heard in the District Court with that person’s standing as a respondent in judicial review proceedings in the High Court.  We accept that it is not necessary for respondents to have had input into the decision, the subject of an application for review, for them to be properly named as respondents in the review proceedings.

2. Mr Donnelly submits that the principles relating to the appropriateness or otherwise of joining parties to judicial review proceedings are well settled.  We accept that contention and we agree that the joinder decision involved the application of those settled principles to the specific facts of the present case.

3. We observe that, although the formulation of the question of law at [8] above might suggest otherwise, in fact Mr Greendrake does not appear to advocate an absolute prohibition on a proposed defendant to criminal charges being joined as a respondent in a review of the decision under s 26. In referring in the quoted extract in [9] above to the exercise of balancing the two sides of the scale, he introduces into the formulation of the question the qualification “in general”. Subsequently he makes reference to an exceptional circumstances exception. Significantly he explains that, if leave is granted, the judgment he seeks would be a declaration that proposed defendants in private prosecutions “should not necessarily” be allowed to participate in the review of a refusal to accept charges for filing. In short, the proposition which he advocates is case-dependent.

4. We do not consider that the present application raises an issue of precedent which warrants the grant of leave for an appeal to this court.  The appropriateness of the participation of a person as a respondent in a judicial review proceeding will be case specific.  It is essentially a matter of case management.  An order of the nature made in this case can have no implications of substance for Mr Greendrake.

5. The powers of a judge to make orders and directions for the appropriate management of judicial review proceedings are broad.[7]  We do not consider that it is seriously arguable that the joinder decision in this case was wrong.  In our view the delay which would be occasioned by an appeal on the issue of joinder is unjustified. The high threshold which applies to appeals from interlocutory decisions is not crossed here.

Result

[7]See s 14(2) of the Judicial Review Procedure Act 2016.

1. The application for leave to appeal is declined.