Morris v District Court at Wellington HC Wn CIV 2008-485-814

[2008] NZHC 2266

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2008-485-814

UNDERthe Judicature Amendment Act 1972 and the New Zealand Bill of Rights Act 1990 and alternatively under the Inherent Jurisdiction of the Court and the High Court Rules

IN THE MATTER OF     an application for review

BETWEEN  CHRISTOPHER CLIFF MORRIS Plaintiff

ANDDISTRICT COURT AT WELLINGTON First Defendant

ANDTHE ATTORNEY-GENERAL OF NEW ZEALAND

Second Defendant

Hearing:         21 April 2008 (On the papers)

Judgment:      21 April 2008 at On the papers

REASONS FOR JUDGMENT OF MACKENZIE J

[1]      The plaintiff has filed an application for judicial review of a decision of the District Court at Wellington refusing an adjournment of the applicant’s trial, scheduled to commence today, together with an application for interim relief under s 8 of the Judicature Amendment Act 1972.  In view of the urgency of the matter, I have refused the application for interim relief and indicated that my reasons would follow.

[2]      The plaintiff is charged with 67 counts of using a document contrary to s 229A of the Crimes Act 1961 and faces retrial in the District Court at Wellington

MORRIS V DISTRICT COURT AT WELLINGTON AND ANOR HC WN CIV 2008-485-814  21 April 2008

commencing today.  This is the third trial in the proceedings.  Each of the previous trials have been the subject of a successful appeal by the plaintiff to the Court of Appeal.  This retrial was set to commence on 7 May 2007, but was adjourned on the application of the Crown.   An application by the plaintiff for a permanent stay of proceedings, on the grounds of undue delay, was refused.  The statement of claim alleges that no reasons have been given for that refusal.   In September 2007 the plaintiff sought an adjournment of the then November trial date on medical grounds, as the plaintiff had been booked for back surgery on 19 November 2007.   That adjournment was granted and the trial set down to commence today.  The statement of claim alleges that there was a delay in surgery, and the plaintiff underwent surgery on 20 March 2008.  The statement of claim further alleges on 14 April the plaintiff instructed counsel that he was not capable of undergoing trial as he was still convalescing from the surgery.   Application for an adjournment was made on 17

April.  That application was refused by Judge Behrens and reasons were given on 18

April.  The judge said that he was not satisfied that the plaintiff was not able to be present, nor was he satisfied that he could not be cared for properly in the course of the trial so as to minimise any risk to him.

[3]      The amenability of the District Court in its indictable criminal jurisdiction to judicial review has been affirmed by the Court of Appeal in Auckland District Court v Attorney General [1993] 2 NZLR 129. That decision related to the review of a District Court Judge’s decision under s 347 of the Crimes Act 1961. The court noted that the power to review such a decision must be sparingly exercised. I consider that that principle, that the jurisdiction must be sparingly exercised, applies with even greater force to the exercise by a District Court judge of a power in relation to the conduct of a trial before the District Court.

[4]      There are a number of reasons why the power to  grant interim relief in relation to a decision made by a trial judge immediately before, or during the course of trial, in relation to the conduct of that trial should be rarely, if ever, exercised.  In the first place, a remedy will be available by way of appeal after trial if an error resulting in a miscarriage of justice is made during the course of the trial.  Second, there would inevitably be disruption if rulings prior to or in the course of trial, for which no immediate right of appeal is available under s 379A of the Crimes Act,

were made the subject of an urgent application for judicial review, and an application for interim relief.  The almost inevitable consequence, if such an application were to be considered, would be the disruption of the trial process.  The granting of interim relief is discretionary, and the exigencies of the trial process, and the availability of a right  of  appeal  after  trial,  would  generally  point  towards  the  exercise  of  the discretion against the grant of relief.

[5]      For these reasons, I have determined:

(a)       That the application for interim relief can properly be determined on an ex parte basis under Rule 256(2)(a) of the High Court Rules;  and

(b)      That the application should be dismissed.

[6]      It was for these reasons that I have refused interim relief.

“A D MacKenzie J”

Solicitors:         Surridge & Co for Plaintiff