Naresh v New Zealand Transport Agency

[2020] NZHC 422

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-1496

[2020] NZHC 422

IN THE MATTER

of an interlocutory application to set aside a sealed judgment

BETWEEN

RAJ NARESH

Applicant

AND

NEW ZEALAND TRANSPORT AGENCY

Respondent

Appearances:

Applicant in person

R M A McCoubrey and J M Phillips for Respondent

Judgment:

(On the papers)

6 March 2020

JUDGMENT OF BREWER J

This judgment was delivered by me on 6 March 2020 at 2:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Meredith Connell (Auckland) for Respondent

NARESH v NEW ZEALAND TRANSPORT AGENCY [2020] NZHC 422 [6 March 2020]

[1]    Mr Naresh (who represents himself) has filed a document intituled “interlocutory application to set aside a sealed judgment upon the ground that the judgement was obtained by fraud”. He has filed an affidavit in support.

[2]    Mr Naresh was a taxi driver. In 2015, Judge Bergseng refused Mr Naresh’s appeal from the New Zealand Transport Agency’s decision not to grant Mr Naresh’s application for a passenger endorsement on his driver’s licence which would have permitted him to continue as a taxi driver.1 Judge Bergseng did, however, reduce the prohibition period from eight years to six years, backdated to 12 June 2011. I heard and dismissed Mr Naresh’s appeal against Judge Bergseng’s decision.2

[3]    Mr Naresh applied to me to recall my judgment. In my minute of 2 December 2015 I ruled there was no basis for me to recall and alter the judgment (which had been sealed).

[4]    It seems from the documents Mr Naresh has now filed that the fraud he alleges is that an affidavit relied on by the New Zealand Transport Agency contained incorrect information about Mr Naresh’s traffic and other offending.

[5]    In my judgment, I referred to the evidence in question in which Mr Peter Stevenson, a senior adjudicator for the New Zealand Transport Agency, set out his review of Mr Naresh’s history of offending. I recorded in my judgment:

[6]    Mr Naresh appealed the NZTA’s decision to the District Court. He gave evidence, as did Mr Stevenson. Prior to the hearing, Mr Naresh’s lawyer and the lawyer for the NZTA put together a Notice of Agreed Facts pursuant to s 9 of the Evidence Act 2006 consenting to the admission of Mr Naresh’s history of offending. Schedule A to the Notice of Agreed Facts included references to two occasions on which Mr Naresh was discharged without conviction. The first such occasion was on 17 December 2009 and related to a charge of  receiving stolen  property.  The  second occasion occurred  on  17 October 2011 and related to a charge of misleading a social welfare officer. On this latter occasion Mr Naresh was ordered to pay reparation of $4,921.93 and witness expenses of $75. Apparently the charge related to misleading a social welfare officer in relation to Mr Naresh’s income as a taxi driver.

[7]    Subsequently, a further discharge without conviction came to the attention of counsel for Mr Naresh. Counsel, quite properly, sought a telephone conference with the Judge and brought the discharge without

1      Naresh v New Zealand Transport Agency [2015] NZDC 6324.

2      Naresh v New Zealand Transport Agency [2015] NZHC 2113.

conviction to the Judge’s attention. The details were confirmed by a joint memorandum of counsel dated 30 March 2015. The parties agreed that it could be taken into account by the Judge. The charge was male assaults female and the discharge without conviction was entered in December 2012.

[6]        The issues I had to decide had nothing to do with the numbers of Mr Naresh’s offences. They related to contentions that Judge Bergseng should not have looked at the actual offending behind the discharges without conviction.

[7]        Rule 11.11 of the High Court Rules 2016 provides for the sealing of judgments. There is limited scope for altering a judgment after sealing because of the principle of finality of litigation and the availability of appeal rights. There is a recognised exception where the judgment was obtained by fraud.

[8]        There is nothing on the papers filed by Mr Naresh which provides a foundation for an allegation of fraud. That is to say, a deliberate and dishonest intention to mislead the Court. At its highest, there might have been a numerical error in counting the number of Mr Naresh’s offences. Mr Stevenson counted 110 traffic-related offences, 12 criminal convictions, three criminal offences which resulted in discharges without conviction and 17 regulatory offences.

[9]        As can be seen from the quoted paragraphs of my judgment, Mr Naresh’s history was before Judge Bergseng and undisputed at the time.

[10]      I note further that Judge Sinclair has recently refused an appeal by Mr Naresh from the New Zealand Transport Agency’s further decision not to renew Mr Naresh’s passenger endorsement.3 In respect of the “fraud” as to the number of offences, Judge Sinclair said:

[22] I do not place any weight on the appellant’s attempt to challenge the numbers of offences in the period prior to the respondent’s decision in March 2014. This offending was all before the Court at the time of his appeal from that decision in 2015. I note in regard to the offending where there had been discharges without conviction that this was a matter considered by Brewer J in the High Court appeal…

…

3      Naresh v New Zealand Transport Agency [2018] NZDC 18612.

[24] Even if some of the entries on the traffic charges schedule are not correct, the entries referred to related to offending which is now of a historical nature. What is significant is that the appellant has continued to offend…

[11]      Mr Naresh sought leave to appeal Judge Sinclair’s decision to this Court. In 2019, Lang J gave an interim judgment noting that Mr Naresh had not identified any questions of law which could found his appeal and gave Mr Naresh until 9 May 2019 to do so. Justice Lang noted:4

[19] During the hearing I gave Mr Naresh a further  opportunity  to  nominate the questions of law he wished this Court to determine. He emphasised that the hearing before Judge Sinclair wrongly proceeded on the basis that he had 107 traffic convictions as at the date of the earlier hearing before Judge Bergseng when he only had 43 as at that date. Judge Sinclair only referred to this issue, however, when she set out the background to the appeal during the opening paragraphs of her decision. Judge Sinclair’s focus was understandably not on the convictions Mr Naresh had sustained prior to 2014 but rather on those he had accumulated between 2014 and 2017. This is evidenced by the following passage in her decision:

[24]   Even if some of the entries on the traffic charges schedule are not correct, the entries referred to related to offending which is now of a historical nature. What is significant is that the appellant has continued to offend. At the time his P endorsement was last renewed in 2010, the appellant was warned that if he continued to offend a fresh determination as to his fitness to hold a P endorsement would be made. In his 2014 decision, Mr Stevenson observed that the appellant had committed 24 offences since this warning had been issued.

[12]Justice Lang gave a final judgment declining leave to appeal.5

[13]      Against this background, I strike out Mr Naresh’s application as an abuse of the process of the Court. It is an obvious attempt to relitigate matters which have already been decided against him by attempting to invoke a jurisdiction which would require proof of deliberate dishonesty.  There is  nothing in  the material  filed  by  Mr Naresh which would stir consideration of that jurisdiction.

[14]      In any event, the effect of my judgment is spent. The period of prohibition I upheld has passed.

4      Naresh v New Zealand Transport Agency [2019] NZHC 523.

5      Naresh v New Zealand Transport Agency [2019] NZHC 1279.

[15]      The New Zealand Transport Agency filed a notice of opposition. I award it costs on a 2B basis.

Brewer J