Page v Ministry of Justice

[2013] NZHC 2258

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

CIV-2013-483-140 [2013] NZHC 2258

BETWEEN  ADRIAN NEIL PAGE Applicant

ANDMINISTRY OF JUSTICE Respondent

Hearing:                   On the papers

Judgment:                2 September 2013

JUDGMENT OF WILLIAMS J

Introduction

[1]      The applicant, Mr Page, applies under s 78B of the Summary Proceedings

Act 1957 (the Act) seeking a rehearing of a judgment issued by me on 7 June 2013.

Background

[2] The background to this application is considerable. The applicant owes or owed fines in excess of $54,000 for breaches of the Resource Management Act 1991, the Building Act 2004 and for wilful damage.

[3]      On 11 October 2011, the Collections Unit of the Ministry of Justice issued a warrant to seize property pursuant to ss 87 and 98 of the Act.  Six days later, a truck, digger and an auger attachment were seized.  In response, the applicant has filed a series of proceedings in an attempt to challenge the order to seize that property.

The first application

[4]      The  applicant  filed  his  first  application  challenging  the  actions  of  the

Collections Unit on 25 October 2011.  This application was made pursuant to s 96 of

ADRIAN NEIL PAGE v MINISTRY OF JUSTICE [2013] NZHC 2258 [2 September 2013]

the Act, which allows a third party claiming an interest in any seized property to seek its release.

[5]      The applicant claimed that the items seized belonged to the Waipuka Trust rather than him personally.   Relevantly, the applicant is a trustee of the Waipuka Trust.  Judge Cameron dismissed the application on the basis that the applicant had not filed any evidence to support his claim.

[6]      Judge Cameron also noted a further claim that the applicant raised in his evidence. The applicant said in relation to ownership of the truck that:

The Collections Department, on my return to Wanganui from Wellington, seized goods which are actually under the Official Assignee’s jurisdiction.

[7]      The basis for this claim was that the applicant had been adjudged bankrupt on

24 February 2011 and, as a result, his truck was vested in the Official Assignee.[1]

[1] Insolvency Act 2006, s 101.

[8]      The problem for the applicant was that the Official Assignee had advised Judge Cameron that it made no claim in relation to the truck, the digger or the auger attachment.  It was content for the Ministry of Justice to continue with the process of selling the truck to reduce the applicant’s fines.  Judge Cameron concluded that the applicant’s third party claim had no basis and dismissed the application accordingly.

Appeal to the Court of Appeal

[9]      The applicant then collaterally appealed to the Court of Appeal in respect of all outstanding fines.   In the meantime, the digger and the auger were sold by the Ministry.  The truck however, remained unsold.  The Court of Appeal dismissed the applicant’s appeal on 24 July 2012.

The second application

[10]     On 27 July 2012, the applicant filed a second claim ‘for the determination of

ownership of property ... and issues relating to costs’.  The applicant claimed that the

truck, digger and  auger  were in  fact  owned  by his  landscaping company Earth

Design Company Limited (EDC) and not himself personally or the Waipuka Trust. On 1 November 2012, Judge Matheson rejected the application.  The Judge found that EDC had in fact been struck off the register and did not exist at the time of the application. The Ministry of Justice then sold the truck.

The third application

[11]     On 24 December 2012, the applicant filed a third claim.   This time, the applicant returned to his assertion that the truck was owned by the Waipuka Trust. On  14  January 2013,  the  Registrar  refused  to  accept  that  application  for  filing because it had been the subject of two unsuccessful applications.  The Registrar also said to the applicant that the assets had been sold and “the proceeds applied in accordance with legislation”.

Subsequent application for review of the Registrar’s decision

[12]     The applicant then sought review of the Registrar’s decision to make an order in relation to the truck under s 106F of the Act.   That section allows a defendant affected by any order or decision relating to the enforcement of fines made by a Registrar to apply to a District Court Judge for a review of the order or decision.

[13]     Judge Ross upheld the Registrar’s decision, finding that the claim that the equipment was owned by the Waipuka Trust had already been dealt with by Judge Cameron and rejected.

Application to appeal District Court decision

[14]     The applicant then made an ‘application to appeal’ Judge Ross’ decision, which came before me.   Counsel for the Ministry of Justice submitted that the applicant had no appeal right, whatever the merits of his case.   The applicant responded that, even if that is correct, he could apply for leave out of time to appeal Judge Cameron’s decision and arrive at the same point.   He submitted that it was better to deal with the substantive merits now.

[15]     I found that the applicant had no appeal right in respect of the decision of

Judge Ross or the earlier decision of Judge Cameron.[2]

[2] Page v Ministry of Justice [2013] NZHC 1309 at [24].

[16]     I went on to say that, in the event that this was incorrect, the applicant’s

appeal lacked merit.  I found that:[3]

His Honour Judge Cameron rejected the Waikupa Trust argument on the basis that there was no evidence to support a conclusion that the Trust owned the truck.   There is still no evidence in that respect.   There is no basis therefore to set aside Judge Cameron’s original decision and certainly no basis to overturn Judge Ross’ acceptance that the Registrar was correct in rejecting a substantially identical further application.

[3] At [25].

[17]     I dismissed the application accordingly.

The current application

[18]     The applicant now makes an application seeking a rehearing of this decision on the basis that “incorrect procedure was followed”.  The applicant seeks redress under s 78B of the Act to “address any irregularities in proceedings”.

[19]     It appears that the applicant is referring to s 78B(1)(a)(iii).   That provision empowers the Court to address “some other irregularity” that has occurred in the procedures leading up to the order for the fine.  Under s 78B(2)(c) a Judge can grant a rehearing of the matter to resolve the irregularity.

[20]     The applicant’s complaint appears to be that the proceeds from the sale of the truck were given to the Official Assignee rather than being used to pay his unpaid fines.  He submits that is an irregularity within s 78B of the Act.

Discussion

[21]     The applicant faces two obstacles.  First, the applicant still does not have any right to appeal against Judge Ross’ decision or Judge Cameron’s decision.   That remains the case, regardless of whether or not the proceeds from the sale of the

equipment were given to the Official Assignee or used to pay the applicant’s fines.

[22]     Second, s 78B(1)(a)(iii) of the Act only applies to irregularities that occurred in the procedures leading up to the order for the fine.   The decision to give the proceeds to the Official Assignee was made after the order for the fine was made.  It follows that, even if the proceeds from the sale have been incorrectly applied, s 78B does not empower this court to grant a rehearing.

[23]     If the applicant is right that the proceeds were given to the Official Assignee rather than applied to his unpaid fines, this appears to be a breach of s 100R, which lists the order in which the proceeds of a sale must be applied.  The applicant can seek judicial review of the Registrar’s decision to give the proceeds to the Official Assignee.

[24]     The application is dismissed accordingly.

Williams J