Nottingham v Honey - [2017] NZHC 2921

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2016-404-000433
CRI-2017-404-000405

CRI-2017-404-000406 [2017] NZHC 2921

BETWEEN
DERMOT GREGORY NOTTINGHAM

Appellant

AND

MARTIN RUSSELL HONEY First Respondent

STEPHANIE FRANCIS HONEY Second Respondent

HEMI TAKA Third Respondent

Hearing: 24 November 2017

Appearances:

Appellant in person
DW Grove for First and Second Respondents
Third Respondent in person

Judgment:

28 November 2017

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 28 November 2017 at 1.30 pm.

Registrar/Deputy Registrar

Solicitors:
Foy & Halse, Auckland.
DW Grove, Auckland.

Copy to:
Appellant and Third Respondent.

NOTTINGHAM v HONEY [2017] NZHC 2921 [28 November 2017]

The issue

[1] Courts are reluctant to dismiss appeals other than because they lack merit. But in certain situations, they must. Mr and Mrs Honey contend this appeal should be dismissed for lack of jurisdiction. Mr Nottingham submits jurisdiction exists. I see the issue a little differently: is the proposed appeal an abuse of process?

Background

[2] Mr Nottingham privately prosecuted Mr and Mrs Honey and Mr Taka. The case took a long time to hear: 17 sitting days. Judge Paul dismissed the charges.1 His Honour concluded there was no case to answer. The defendants sought, and were awarded, a total of $117,000 costs under the Costs in Criminal Cases Act 1967. Judge Paul made that award on 13 July 2016.2

[3] On 16 December 2016 Mr Nottingham filed an application for leave to appeal Judge Paul’s decisions to dismiss the charges and award costs. The proposed appeal was framed as one involving a series of questions of law under s 296 of the Criminal Procedure Act 2011.

[4] Davison J heard the application over three days in May 2017. On 24 July 2017, the Judge declined leave in relation to all proposed questions.3 Mr Nottingham has since lodged either an appeal or an application for leave to appeal Davison J’s decision to the Court of Appeal.

[5] On 8 November 2017 Mr Nottingham then filed an application for leave to appeal Judge Paul’s costs decision. At callover on 24 November 2017, Mr Grove for Mr and Mrs Honey contended the appeal was without jurisdiction—or jurisdiction for an appeal was now spent, because of the sequence above.

[6] Mr Nottingham resists this contention, as s 271 of the Criminal Procedure Act provides a separate right of appeal in relation to costs. Mr Nottingham contends he

1      Nottingham v Honey [2016] NZDC 9272.
2      Nottingham v Honey DC Auckland CRI-2014-004-003937, 13 July 2016.
3      Nottingham v District Court at Auckland [2017] NZHC 1715.

has never exercised this jurisdiction. Mr Nottingham acknowledges leave is required for the appeal, as it is substantially out of time. But, he contends the appeal is otherwise available and should be progressed by a timetable.

Analysis

[7] I am satisfied the appeal must be dismissed as an abuse of process. My reasons can be brief.

[8] First, it is clear Mr Nottingham’s application for leave to…

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.

Keep reading for free

Create a free CaseChat account to read Nottingham v Honey and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NZHC 2921
Decision Date: 28 November 2017

CaseChat Overview and Summary

The case of Nottingham v Honey involved Dermot Gregory Nottingham, who had privately prosecuted Martin Russell Honey, Stephanie Francis Honey, and Hemi Taka. Nottingham appealed against the decisions of Judge Paul, who had dismissed the charges against the respondents and awarded them costs under the Costs in Criminal Cases Act 1967. The appeal was heard in the High Court, where Downs J dismissed the appeal on the basis that it was an abuse of process. The primary legal issue before the court was whether the appeal was an abuse of process, given that it was substantially out of time and sought to re-litigate the same issue that had already been decided against Nottingham. The court held that the appeal was an abuse of process because it sought to circumvent the previous decision and re-litigate the same issue in another court. The court further noted that the private prosecution was fundamentally flawed, and the costs awarded to the respondents were necessary. The appeal was dismissed, and the respondents were awarded costs.

Orders