Greendrake v District Court of New Zealand
[2019] NZHC 2504
•2 October 2019
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV-2018-425-000096
[2019] NZHC 2504
BETWEEN EUGENE ANTHONY GREENDRAKE
Applicant
AND
DISTRICT COURT OF NEW ZEALAND
Respondent
Hearing: On the papers Appearances:
Applicant in person
R W Donnelly appointed to assist the Court as Contradictor
Judgment:
2 October 2019
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 2 October 2019 at 4.15 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: 2 October 2019
Introduction
[1] On 18 July 2019 I issued a decision ordering that Wayne McConnochie be joined as a respondent to this proceeding. Mr Greendrake now seeks leave to appeal my decision to the Court of Appeal.
GREENDRAKE v DISTRICT COURT OF NEW ZEALAND [2019] NZHC 2504 [2 October 2019]
Background
[2] Mr Greendrake filed charging documents in relation to a private prosecution against Mr McConnochie in 2018 pursuant to s 26 Criminal Procedure Act 2011. The District Court refused to accept those documents for filing in a decision of 15 October 2018.1
[3] Mr Greendrake subsequently commenced judicial review proceedings in this Court. The District Court, as the respondent, abides the decision of the Court and has been excused from further attendance.
[4] In order to ensure that the matter is fully argued before the Court, Mr Donnelly was appointed as counsel to assist and to act as contradictor. Mr Donnelly raised the question of whether, pursuant to s 9(1)(b) Judicial Review Procedure Act 2016 (the Act), the potential defendant, Mr McConnochie, should be joined as a respondent in this proceeding. I ruled that he should.2 Mr Greendrake now seeks leave to appeal that ruling to the Court of Appeal.3
Relevant law
[5] The Court in Finewood Upholstery Ltd v Vaughan summarised the relevant considerations in an application for leave to appeal as follows:4
(a)A high threshold exists for the granting of leave. An allegation of error of law or fact is generally insufficient. An applicant should raise an arguable error.
(b)Leave should only be granted where the circumstances warrant incurring further delay.
(c)The alleged error should be of general or public importance that requires determination, or otherwise be of sufficient importance to the applicant to outweigh the lack of any general or precedential importance.
1 Greendrake v McConnochie DC Invercargill CRI-2018-025-1593, 15 October 2018.
2 Greendrake v District Court of New Zealand [2019] NZHC 1680.
3 Judicial Review Procedure Act 2016, s 20; Senior Courts Act 2016, s 56(3).
4 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [9].
Arguable errors of law
[6]Mr Greendrake proposes the following two errors of law:
(a)failure to counterbalance the general right of potentially affected parties in judicial review to be heard against the specific absence of such right for prospective defendants under s 26 Criminal Procedure Act, and that granting such a right would be inconsistent with the statutory scheme and the procedure within s 26; and
(b)inaccurate representation of case law resulting in full joinder when only limited joinder was warranted.
Failure to counterbalance judicial review rights with criminal procedure rights
[7] Mr Greendrake accepts that the case law states a person should be joined to judicial review proceedings where they will potentially be affected by the outcome of those proceedings.5 However, he submits that the cases referred to in my judgment involved judicial review of civil proceedings, whereas the present case relates to a criminal prosecution. He refers to Goodman Fielder New Zealand Ltd v District Court at Porirua, where Cooke J found there was no obligation to allow proposed defendants to be heard on a determination under s 26 Criminal Procedure Act.6 Cooke J considered that a right to be heard may be appropriate “where a Judge considers a defendant’s input is needed to make a properly informed decision”, but that in most cases such a hearing would interfere with the efficient disposal of court proceedings.7 Mr Greendrake says it is therefore inappropriate to allow a proposed defendant to be heard on a review of a s 26 decision.
[8] Mr Donnelly submits that the fact Mr McConnochie did not have an absolute right to be heard in the District Court does not alter the process on review. The Act does not provide divergent procedures depending upon the type of decision at first
5 Air New Zealand Ltd v Queenstown Lakes District Council HC Christchurch CIV-2010-425-395, 7 April 2011 at [8]; Muir v Taxation Review Authority [2017] NZHC 846 at [23]-[24]; and Wilson v Attorney-General [2010] NZAR 509, (2010) 19 PRNZ 943 at [20].
6 Goodman Fielder New Zealand Ltd v District Court at Porirua [2019] NZHC 599.
7 At [25] and [29], citing H Construction North Island Ltd v District Court at Auckland [2018] NZHC 2327 at [53].
instance. Mr Donnelly says it is inarguable that Mr McConnochie’s rights may be impacted by the review, and as such he should have standing to be heard.
[9] I am not satisfied that this is a sufficiently arguable error of law to warrant granting leave. It is well established that in judicial review proceedings, any person who may be affected by the outcome of the proceeding should be joined as a respondent. The outcome of the review proceeding is certain to affect Mr McConnochie, and thus it is clear he should be given the opportunity to be heard.
[10] Mr Greendrake argues this test should not apply to review proceedings on criminal matters. However, as Mr Donnelly points out, the judicial review procedure is the same regardless of whether the matter being reviewed is civil or criminal. The Judicial Procedure Act does not make any distinction between the two, and I do not consider there is any basis for applying such a distinction.
[11] I am supported in this view by Katavich v District Court at Nelson.8 The proceedings in that case were similar to those at hand. Mr Katavich attempted to commence a private prosecution against Ms Nelson, which was refused by the District Court. Mr Katavich filed an application for judicial review of that refusal, with the District Court as the only respondent, and counsel to assist and act as contradictor was appointed. After some initial opposition, Ms Nelson was joined to the proceedings as the second respondent by way of a consent memorandum. Mr Katavich subsequently withdrew his application for judicial review, and Ms Nelson sought costs. Mr Katavich argued that Ms Nelson was not entitled to costs because she was an unnecessary party to the judicial review proceeding. Dobson J did not accept that argument. He found Ms Nelson was indeed a necessary party to the judicial review proceeding because “the relief sought, if granted, would be adverse to her interests”.9
[12] Furthermore, in the recent Goodman Fielder New Zealand Ltd decision, which Mr Greendrake cites to support this ground of appeal, it is recognised that there will be some circumstances in which proposed defendants should be given a right to be
8 Katavich v District Court at Nelson [2015] NZHC 956.
9 At [12].
heard under s 26.10 It is not, therefore, inconsistent with the application of s 26 to allow a proposed defendant to be heard on review of a s 26 decision.
[13] I am not satisfied that it is sufficiently arguable that this Court erred in failing to interpret the judicial review procedure in light of the criminal nature of the decision on review, to warrant granting leave.
Inaccurate representation of case law
[14] Mr Greendrake’s second alleged error of law is that full joinder was ordered without consideration of whether limited joinder would be more appropriate. He relies on Wilson v Attorney-General for this ground.11 The Court in that case stated:12
Fairness to the [applicant], who is having another party interposed in his proceeding, demands that the Court consider whether the joinder should be for all or only limited purposes. The level of participation should be only what is necessary to protect the interests of the party being added.
[15] Wilson concerned the judicial review of decisions made by the Judicial Conduct Commissioner and the Acting Attorney to commence an inquiry into the conduct of Justice Wilson. The two parties seeking joinder had both made complaints leading to the inquiry; Sir Edmund Thomas sought joinder as a respondent, while Saxmere Company Ltd (Saxmere) sought joinder as an interested party. The Court held it would be inappropriate for Sir Edmund to be joined as a respondent “in this type of context” because he was not “a person or body whose exercise of a statutory power of decision is challenged”.13 It considered Sir Edmund would suffer no unfairness from being joined as an interested party instead, and thus losing a respondent’s rights to, for example, appeal or seek relief. The Court found the interests of both parties seeking joinder were limited to having their complaints properly put before the Court; neither could “really add anything” to the issue of whether the respondents exercised their decision-making powers correctly.14 Both Sir Edmund and Saxmere were therefore joined as interested parties rather than as respondents.
10 Goodman Fielder New Zealand Ltd v District Court at Porirua, above n 6, at [25].
11 Wilson v Attorney-General, above n 5.
12 At [20].
13 At [22].
14 At [25].
[16] Hammond J in Westhaven Shellfish Ltd v Chief Executive of Ministry of Fisheries also stated that the Court should consider whether joinder should be for all or only limited purposes.15 In that case, the applicant was challenging the refusal of cockle harvesting rights within a particular area. The party seeking joinder, Southern Clams Ltd, already had cockle harvesting rights in that area, and was therefore interested in protecting its sole proprietary rights. The Court joined Southern Clams as a respondent subject to conditions, including that it could not file a statement of defence. The purpose of these conditions was to limit Southern Clams’ involvement to that necessary to protect its interests, and to avoid overcomplicating the proceeding.
[17] I consider the present case can be distinguished from Wilson and Westhaven because the interest of Mr McConnochie is significantly greater than that of the proposed respondents in those cases. If Mr Greendrake is successful in his judicial review application, it is likely that Mr McConnochie will become the defendant in a private prosecution. This is a direct and personal consequence which is quite different from the interests at stake in Wilson and Westhaven. I therefore consider it appropriate for Mr McConnochie to be fully joined as a respondent, as was the case in Katavich.16
[18] I appreciate that Mr Greendrake’s argument on this ground is that this Court erred in law by not considering whether limited joinder was appropriate, regardless of whether it was. Given my view that joinder (in whatever capacity) was warranted in this case, I do not see that this alleged failure is a material error. In any event, it is not an arguable error of such general or public importance that it warrants further delay to this proceeding, as I will now discuss.
General or public importance
[19] Mr Greendrake submits that this judgment creates a precedent that proposed defendants in criminal proceedings should be invited to be joined as full respondents in judicial review proceedings. He says that the “remarkableness” of this decision warrants appeal to a higher court.
15 Westhaven Shellfish Ltd v Chief Executive of Ministry of Fisheries (2002) 16 PRNZ 501 at [14(3)].
16 Katavich v District Court at Nelson, above n 8.
[20] Mr Donnelly contends that this appeal does not raise issues of general or public importance. He submits that the unique questions on appeal in this case are not common enough to warrant guidance from the Court of Appeal.
[21] The general rights of persons and bodies to be joined as respondents in judicial review proceedings are relatively well established. The judgment sought to be appealed simply applies the current case law to a specific situation, which Mr Donnelly rightly points out is unlikely to come before the courts often. This appeal does not raise issues of general or public importance, nor do I consider it to be especially important to Mr Greendrake, given it will not materially affect his ability to run his case in the same way as if Mr McConnochie had not been joined.
Circumstances warranting further delay
[22] It is clear from my discussion so far that I do not consider this appeal warrants further delay. Mr Greendrake submits that delay would not affect any parties to the proceeding given the District Court has been excused from participation and Mr Donnelly is not a party. The relevant effect of delay, however, is not limited to that affecting parties to a proceeding. The purpose of the leave requirement is to “limit the cases which may go on appeal in in the interests of finality of litigation and the workload of the … Court, while preserving the integrity of the law and the interests of justice”.17 This appeal does not warrant the burdening of the Court of Appeal, nor delay to the proceedings in this Court, or to the District Court if the review is successful. No prejudice will arise to Mr Greendrake from the joinder of Mr McConnochie to the proceeding.
Conclusion
[23] I am not satisfied that either of the grounds raised by Mr Greendrake are arguable errors involving some question of sufficient importance to outweigh the cost and delay of a further appeal.
17 Western Joinery Ltd v Commissioner of Inland Revenue [2017] NZHC 3297 at [9], citing Sandle v Stewart [1982] 1 NZLR 708 (CA) at 715.
[24]I decline leave to appeal to the Court of Appeal.
Solicitors:
Crown Law, Wellington
Preston Russell Law, Invercargill
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