Page v Ministry of Justice

[2013] NZHC 1309

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

CIV-2013-483-140 [2013] NZHC 1309

BETWEEN  ADRIAN NEIL PAGE Applicant

ANDMINISTRY OF JUSTICE Respondent

Hearing:                   4 June 2013

Counsel:                  Mr Page in person

J M Woodcock for Crown

Judgment:                7 June 2013

JUDGMENT OF WILLIAMS J

[1]      The applicant Mr Page, owes or owed fines in excess of $54,000 for breaches of the Resource Management Act, the Building Act and for wilful damage.

[2]      On 11 October 2011, the Collections Unit of the Ministry of Justice issued a warrant to seize property from the applicant for those unpaid fines.

[3]      On 19 October 2011, a truck, digger and auger attachment were seized.   It was considered that these items belonged to Mr Page.

[4]      On 25 October 2011, the applicant made an application pursuant to s 96 of the Summary Proceedings Act (a provision that allows a third party claiming an interest in any seized property to seek its release).  He claimed that the equipment in fact belonged to the Waikupa Trust – a trust in which the applicant is a trustee –

rather than the applicant personally.

PAGE v MINISTRY OF JUSTICE [2013] NZHC 1309 [7 June 2013]

[5]      On 16 December 2011, Judge Cameron in the District Court rejected the application.    The  Judge  found  that  the  evidence  filed  by  the  applicant  did  not establish that the equipment was in fact owned by the Waikupa Trust.  The applicant did not appear to press this claim on behalf of the Trust.

[6]      The applicant then collaterally appealed to the Court of Appeal in respect of all outstanding fines but because the appeal did not affect the digger or auger, these were sold by the Ministry.   The truck however, remained in play.   The Court of Appeal subsequently dismissed the applicant’s appeal.

[7]      On 27 July 2012, the applicant filed a second claim “for the determination of ownership of property ... and issues relating to costs”.  The applicant then 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 Waikupa Trust. This issue came before Judge Matheson.

[8]      On 1 November 2012, that claim was dismissed on the basis that EDC had in fact been struck off the register and did not exist at the time of the application.

[9]      The pathway now cleared, the Ministry of Justice then sold the truck.

[10]     On 24 December 2012, a third claim was lodged on the same terms.  But this time the focus had returned to the Waikupa Trust.

[11]     On 14 January this year, the Registrar refused to accept that application for filing on the basis that the matter had been the subject of two previous applications and both had been determined against the applicant.   In any event, the Registrar considered, the assets had been sold and “the proceeds applied in accordance with legislation.”  The Registrar advised Mr Page that he had a right of review.  Mr Page took up the invitation and sought review of the Registrar’s decision under s 106F of the Summary Proceedings Act.  At least that is how the Registrar treated a further letter from the applicant dated 2 January 2013 entitled “An application for a third party claim”.

[12]     His   Honour   Judge   Ross   duly   received   the   review   application   and accompanying documentation from the Registrar.  He then dealt with the matter on the papers and issued a minute upholding the Registrar’s decision essentially on the basis that the claim that the equipment was owned by the Waikupa Trust had already been dealt with by Judge Cameron and rejected.  It had, the learned Judge said, been judicially considered.

[13]     Mr Page now makes an ‘application to appeal’ Judge Ross’ decision.

[14]     Ms  Woodcock  for  the  respondent,  argues  that  there  is  no  appeal  right whatever the merits.  Mr Page’s reply is that, even if that is correct, he could still apply for leave to appeal Judge Cameron’s s 96 decision out of time and arrive at the same point.   It was, he said, better to deal with the substantive merits now than simply dismiss the appeal against Judge Ross’ decision.

[15]     That tack cannot help Mr Page.  That is because there is no express appeal right against either Judge Ross’ review decision under s 106F or Judge Cameron’s earlier rejection of the Waikupa Trust argument under s 96.

[16]     As Ms Woodcock points out, the Summary Proceedings Act provides for two appeal pathways:

(a)       appeals on a point of law under s 107; and

(b)      general appeals under s 115.

[17]     These provisions are focused on criminal decision-making.   They relate to informations or complaints and so have no application to the issue being brought to court by Mr Page.  The only other general appeal right is contained in s 72 of the District Courts Act 1947. That section provides as follows:

(1)       This subsection applies to every decision made by a District Court other than a decision of a kind in respect of which an enactment other than this Act–

(a)      expressly confers a right of appeal; or

(b)      provides expressly that there is no right of appeal.

(2)       A party to proceedings in a District Court may appeal to the High Court against the whole or any part of any decision to which subsection (1) applies made by the District Court in or in relation to the proceedings.

[18]     While the wording of s 72 is very broad, the authorities are clear firstly, that it relates only to civil proceedings; and secondly, that an order determining the ownership of property under the Summary Proceedings Act  1957 is  not a civil proceeding.   See for example the decision of Doogue J in Evers v District Court Blenheim[1]  followed by Gendall J in Delta Transport (1995) Limited v Palmerston

North District Court Balifff.[2]

[1] Evers v District Court Blenheim HC Blenheim AP 1/97, 14 February 1997, Doogue J.

[2] Delta Transport (1995) Limited v Palmerston North District Court Balifff HC Palmerston North AP 49/96, 6 June 1997.

[19]     A more recent consideration of the underlying principles may be seen in the discussion of appeal rights in a disclosure case in extradition proceedings in United States of America v Dotcom.[3]   In that case Winkelmann J held there was no right of appeal under the s 72 general appeal provision against the District Court’s decision to grant an application for disclosure in extradition proceedings.  The proceedings, she said, were not civil but “quasi-criminal”.

[3] United States of America v Dotcom [2012] NZHC 1353.

[20]     The same logic applies to the application to review the Registrar’s refusal to accept the further application in a criminal proceeding.  That refusal must also be seen as part of the underlying criminal proceeding and therefore caught by the authorities to which I have referred.

[21]     Counsel for the respondent has responsibly pointed me to the decision in Keleher v Police[4]  in which Miller J found that a limited licence application arising from a mandatory statutory suspension under s 90 of the Transport Act was a civil proceeding  –  or  at  least  was  not  a  criminal  proceeding.    Crucial  to  Miller J’s reasoning  was  that  the  suspension  was  mandatory  and  involved  no  exercise  of

judicial discretion.  He said:[5]

There is no proceeding.   The necessary steps are administrative in nature. The Director, who has no discretion in the  matter, writes to the person concerned advising that his or her licence has been suspended by operation of s 90.

[4] Keleher v Police CRI-2004-470-13, 30 April 2004.

[5] At [18].

[22]     That is not the position in this case.  Here the fines were imposed in criminal proceedings.

[23]     There is, as the respondent points out, a distinction between the warrant to seize procedure contained in ss 87, 98 and 99 of the Summary Proceedings Act, and s 88AE(1)(g) in which the court has a discretion to refer the matter of unpaid fines to the Registrar with the direction to enforce the fines.  In the s 88AE(1)(g) process the court is specifically deemed to be acting “in its civil jurisdiction”.  No such reference is contained in the provisions relating to warrant to seize.

[24]     The effect therefore is that there is no appeal right in respect of either the decision of Judge Ross or the earlier decision of Judge Cameron.

[25]     In case the foregoing conclusions are wrong, I am in no doubt that the appeal lacks merit in any event.   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.

[26]     The application is dismissed accordingly.

Williams J

Solicitors:

Crown Solicitor, Whanganui

A N Page, Whanganui