McGowan v District Court at Christchurch

[2010] NZCA 557

IN THE COURT OF APPEAL OF NEW ZEALAND

CA25/2010
[2010] NZCA 557

BETWEENGRANT PERRY MCGOWAN
Applicant

ANDTHE DISTRICT COURT AT CHRISTCHURCH
First Respondent

ANDTHE CROWN SOLICITOR AT CHRISTCHURCH
Second Respondent

ANDDEBORAH FAYE SHIRLEY ADAMS
Third Respondent

Hearing:16 November 2010

Court:O'Regan  P, Hammond and Arnold JJ

Counsel:P B McMenamin for Applicant (by telephone)
S B Edwards and P W Saunders for the Second Respondent

Judgment:25 November 2010 at 11 am

JUDGMENT OF THE COURT

The application for an extension of time to file the case on appeal and seek a fixture is granted subject to the following conditions:

(i)the case on appeal must be filed and served and a fixture must be sought within fourteen days of the date of this judgment.

(ii)the applicant must accept a fixture as allocated by the Registrar to ensure the appeal is heard within the first quarter of 2011 and on the same day as the applicant’s application for leave to appeal the pretrial ruling relating to joinder.

_______________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)

Introduction

[1]       The applicant seeks an extension of time for filing the case on appeal and applying for a hearing date in relation to his appeal against a decision of Panckhurst J dismissing his application for judicial review of a District Court decision.[1] 

Background

[1]McGowan v District Court at Christchurch HC Christchurch CIV-2009-409-2303, 14 December 2009.

[2]       The background to the present application is as follows.  The applicant faces a large number of charges alleging offences against the Tax Administration Act 1994.  In relation to many of these charges, he is charged jointly with the third respondent.  He and the third respondent are alleged to have aided and abetted two companies to evade the payment of PAYE and the filing of false PAYE returns.  Each blames the other and says that the other was responsible for the filing of the relevant returns.

[3]       The third respondent sought disclosure of certain information relating to the charges faced by the applicant alone.  Judge Erber held that the applicant’s criminal record, particulars of the charges to be faced by him alone and particulars of propensity evidence proposed to be led by the Crown in his trial should be disclosed to the third respondent.  The applicant sought judicial review of that decision.  Panckhurst J dismissed the judicial review application.  The applicant appealed against Panckhurst J’s decision but did not apply for the allocation of a hearing date or file the case on appeal within six months of the date of filing.  However, the applicant filed an application for an extension of time to take those steps under r 43(2) of the Court of Appeal (Civil) Rules 2005.

[4]       The Crown applied to the District Court for an order that all of the counts against the applicant and the third respondent jointly and all of the counts against the applicant solely be heard in the same trial.  Since the filing of the appeal in this Court against Panckhurst J’s decision, the Crown’s application for joinder has been dealt with and an order for joinder was made.  The applicant has now sought leave to appeal against the joinder decision and that application for leave has been set down for hearing in this Court in March 2010. 

The present application

[5]       The Crown opposed the present application for an extension of time to file the case on appeal and seek a hearing date.  No other party opposed the application.  The Crown’s opposition was based on its concern that the delay in bringing the appeal against the decision of Panckhurst J to a conclusion would cause further delays in the criminal proceedings against the applicant and the third respondent.  There have already been considerable delays in relation to those proceedings. 

Resolution

[6]       In the hearing before us we suggested to the applicant’s counsel and Crown counsel that the sensible way forward would be for the application for leave to appeal against the joinder decision and the appeal against the judicial review decision to be heard by the same panel on the same day.  If the application for leave to appeal against the joinder decision fails, then, as Mr McMenamin acknowledged, the judicial review appeal falls away because if there is to be a joint trial of all counts, the third respondent will be entitled to full disclosure of the matters presently in dispute.  

[7]       For the Crown, Ms Edwards accepted that that solution would address the Crown’s concern about further delay.  We therefore see no reason to refuse the present application, and grant it subject to conditions to ensure there are no further delays.  The Registrar is able to allocate hearings for both matters on 23 February 2011 in Wellington, and the fixture for the hearing of the joinder appeal has now been changed to that date.  As soon as the application for a hearing date for the judicial review appeal is received, a hearing will be allocated for that matter on the same day, before the same panel.

[8]       We make no award of costs.

Solicitors:
K J McMenamin & Sons, Christchurch for Applicant
Crown Law Office, Wellington for Second Respondent