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Mann v Wilson

Mann v Wilson

Case [2024] NZCA 181 28 May 2024

Civil Litigation & Procedure

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA112/2023
[2024] NZCA 181

BETWEEN	GARY DOUGLAS MANN Appellant
AND	DAVID NOEL WILSON First Respondent DISTRICT COURT AT WELLINGTON Second Respondent

Hearing:	5 March 2024
Court:	Ellis, Gault and Cull JJ
Counsel:	D A Ewen and N A Mitskevitch for Appellant S P Connolly and H Worth for First Respondent M W McMenamim for Second Respondent (abiding)
Judgment:	28 May 2024 at 11.30 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
B The directions made by the High Court are quashed and the directions made in the District Court are reinstated.
CThe costs award made by the High Court is set aside.
D The first respondent must pay costs to the appellant for a standard appeal on a band A basis, with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellis J)

Table of contents

Para no

What happened?

The property
The Term Loan Agreement and the Security
The TLA and the security are assigned to WPA and a receiver is appointed
The attempt to injunct the sale
Subsequent events

The private prosecution

Statutory context
Narrative of the prosecution

The application for judicial review

The High Court decision

Amenability of s 26 decisions to review
Merits of the application for review: evidential sufficiency

Property
Possession or Control
Terms or circumstances giving rise to the relevant requirement
Knowledge of the requirement and intentional dealing
Overall conclusion on evidential sufficiency

Merits of the application for review: abuse of process

Issues on appeal

Abuse of process?

Was the High Court correct to decide that judicial review of the District Court decision was appropriate?

Was the evidence before the District Court sufficient to prove the elements of the charge to the prima facie standard?

Control over property
Circumstances requiring Mr Wilson to deal with the property in a certain way
Knowledge and intention
Conclusion on evidential sufficiency

Result

Mr Mann initiated a private prosecution against Mr Wilson, charging him with theft in a special relationship.[1] After some toing and froing, Judge Sainsbury in the District Court made a direction under s 26 of the Criminal Procedure Act 2011 (the CPA) that the charging document be accepted for filing.[2]
[1]Crimes Act 1961, s 220.
[2]Further Direction of Judge Sainsbury, DC Wellington, 23 May 2022.
Mr Wilson then sought judicial review of that decision in the High Court. Mr Mann chose not to participate in the High Court proceedings, abiding the Court’s decision. Mr Mann’s position was, instead, essentially advanced through Ms Markham, who had been appointed to act as contradictor.
In her decision of 31 January 2023, Gwyn J granted the application for review on the grounds both that the private prosecution was an abuse of process and that the proposed evidence was insufficient to support the charge.[3] She set aside the District Court decision and directed the Registrar of the District Court not to accept the charging document for filing. Later, she awarded 2B costs against Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mann v Wilson

Details

AGLC: Mann v Wilson [2024] NZCA 181
Case: [2024] NZCA 181
Decision Date: 28 May 2024 at 11.30 am

CaseChat Overview and Summary

In Mann v Wilson, the Court of Appeal overturned a High Court decision that had quashed a District Court decision to accept a charging document for a private prosecution. The District Court had accepted the charging document under section 26 of the Criminal Procedure Act 2011, which allows for a screening process to determine if a private prosecution should proceed. The High Court had granted judicial review on the grounds that the prosecution was an abuse of process and that the evidence was insufficient. The Court of Appeal found that the private prosecution was not an abuse of process and that the evidence was sufficient to meet the prima facie standard required by section 26. The Court emphasised the importance of the s 26 gatekeeping process as a preliminary and uncomplicated screening mechanism and cautioned against judicial review being used to delay or derail the orderly conduct of criminal trials. The Court reinstated the District Court's decision, quashed the High Court's directions, and set aside the costs award. The first respondent was ordered to pay costs to the appellant for the appeal.

Orders