Li v Commissioner of Police

[2016] NZHC 909

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-002067 [2016] NZHC 909

BETWEEN

ZHIWEI LI

Applicant

AND

COMMISSIONER OF POLICE First Respondent

CHENG-LAN WANG Second Respondent

Hearing:	4 May 2016
Appearances:	F Deliu for Applicant M Harborow and H Clark for First Respondent M Kan for Second Respondent
Judgment:	5 May 2016

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 5 May 2016 at 4.00pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:…………………………

Solicitors:

Crown Solicitor, Auckland

F Deliu, Auckland

Michael Kan Law, Auckland

LI v COMMISSIONER OF POLICE [2016] NZHC 909 [5 May 2016]

Introduction

[1]      On 18 December 2015, the applicant, Mr Li, filed an application seeking to vary existing restraining orders which are in place.  That application was opposed by the Commissioner, and it was set down for hearing today at 11.45am.

[2]      The application was supported by an affidavit filed and sworn by Mr Li, and on 29 April 2015, the Commissioner gave notice that he required Mr Li to attend for cross-examination.

[3]      Submissions were filed by both Mr Li and the Commissioner in accordance with a timetable order put in place by Venning J.   No other papers were filed by either party.

[4]      When the matter was called in Court this morning Mr Deliu, appearing on behalf of the first respondent, raised, for the first time, two issues:

(a)      That the Commissioner was not entitled to give notice requiring that Mr Li attend for cross-examination, and that the Commissioner was required to seek leave; and

(b)That the Commissioner had failed to arrange for the attendance of an interpreter.

[5]      I heard from the parties on both issues.  I deal with them as follows:

Is leave required?

[6]      Mr Deliu submitted that the application filed by Mr Li was an interlocutory application and that therefore leave is required to cross-examine a deponent pursuant to r 7.28 of the High Court Rules.

[7]      Mr Harborow responded by submitting that an application under the Criminal Proceeds  (Recovery) Act  2009  (“the Act”) falls  to  be dealt  with  by originating application under r 19.2, that r 9.74 applies, and that a party desiring to cross-

examine a person who has sworn or affirmed an affidavit may serve a notice in writing requiring that that person be produced for cross-examination.

[8]      I  have  reached  the  clear  view  that  Mr  Harborow  is  correct,  that  the Commissioner was entitled to give notice, and that the leave of the Court was not required.   I note that Ellis J has previously reached the same view.1     I adopt her reasoning and conclude as follows:

(a)       Proceedings relating to restraining orders are civil proceedings.2   The

High Court Rules therefore apply.

(b)An application for a restraining order, or for other civil orders sought under the Act, must be made by way of originating application.3

(c)      On 4 September 2015 Courtney J made without notice restraining orders in this proceeding over various bank accounts and a residential property belonging to Mr Li and his wife – the second respondent, Ms Wang.  A further without notice order was made by Edwards J on 9

September 2015, and an on notice restraining order in relation to all property which was restrained under the without notice orders was made by Keane J on 7 October 2015.   That order remains in force pending the Commissioner’s application for civil forfeiture orders.

(d)It was open to the Court to impose conditions on the restraining orders made, including a condition that provided for the reasonable living costs of Mr Li and Ms Wang and of any of their dependents to be met out of the restrained property.4   Neither the without notice restraining orders  nor  the  on  notice  restraining  order  contained  any  such

condition.

1      Commissioner of Police v Burgess HC Auckland CIV-2010-404-002893, 15 June 2015 (minute).

2      Criminal Proceeds (Recovery) Act 2009, s 10(1).

3      High Court Rules, r 19.2(r).

4      Criminal Proceeds (Recovery) Act, s 28(1)(a).

(e)      Mr Li by his application dated 18 December 2015 is seeking to vary the existing on notice restraining order.   It is not an interlocutory application made in accordance with rr 7.19 or 7.41 of the High Court Rules.   Nor is it an application which seeks to vary or rescind an interlocutory order.  It is an application which seeks to vary an extant Court order.

(f)      Where proceedings are commenced by way of originating application, r 19.14 applies.     It in turn provides that r 9.74 applies to such proceedings.

(g)Rule 9.74 provides that a party desiring to cross-examine a person who  has  sworn  an  affidavit  may  serve  on  that  person  a  notice requiring the production of that person for cross-examination before the Court.

[9]      For these reasons, I have concluded that leave of the Court to cross-examine under r 7.28 is not required.  The Commissioner is entitled to give notice pursuant to r 9.74.

[10]     If Mr Li is not produced for cross-examination at the hearing of the variation application, he runs the significant risk that his affidavit will be disregarded, in accordance with r 9.74(3).

Interpreter’s Costs

[11]     I now turn  to  the issue  of who is  responsible  to  meet  the  costs  of  any interpreter required.

[12]     It  is  not  the  Court’s  responsibility  in  civil  proceedings  to  arrange  for interpreters.  It is an issue left to the parties.  Normally the party calling a witness who needs an interpreter meets the costs involved.

[13]     In the event the parties did not require me to make a ruling on this issue.  Mr Deliu advised me that he was confident that he could reach agreement with Mr Harborow in relation to it.

[14]     I therefore take the matter no further, but reserve to either party the right to come back to me via a telephone conference for a ruling in the event that the same is required.

General

[15]     I record my view that this morning’s proceedings were very much a footling waste of time.  Mr Deliu was aware of the prior decision made by Ellis J.  He was one of the counsel involved in that case.  Before me he simply argued that Ellis J was wrong.   Further he was not opposed to the grant of leave even if the same was required.  Mr Deliu did not advise Mr Harborow in advance of the points that were to be taken.  Had he done so, it may have been possible to advance matters.  The end result has been that valuable Court time was wasted and the parties were put to unnecessary and ultimately unproductive costs.   Importantly the disposition of Mr Li’s application has been frustrated until such time as the Court can allocate a fresh hearing date.

[16]     The Registrar is directed to allocate a further fixture for this matter.  Counsel estimate that it will take three quarters of a day.

[17]     The costs of today’s hearing are reserved.

Wylie J