Payne v The Queen

[2005] NZCA 100

IN THE COURT OF APPEAL OF NEW ZEALAND

CA256/04

BETWEENROGER JOHN PAYNE

Applicant

ANDTHE ATTORNEY-GENERAL

Respondent

Hearing:11 May 2005

Court:Hammond, Chambers and O'Regan JJ

Appearances:  Applicant in Person

T J Warburton for Respondent

Judgment:11 May 2005 

JUDGMENT OF THE COURT

THE APPLICATION FOR AN ADJOURNMENT IS DECLINED.

REASONS

(Given by Hammond J)

[1]        We have before us an application for the adjournment of a matter which is included in the Miscellaneous Motions List of this Court, for hearing on Monday 16 May 2005.

[2]        The application comes about this way.  On 4 August 2004 Ronald Young J dismissed an application by Mr Payne for the review of three judgments of Associate Judge Gendall.  In those decisions, the Associate Judge struck out proceedings alleging misfeasance in public office by three District Court Judges.  Ronald Young J also awarded indemnity costs against Mr Payne.

[3]        Mr Payne applied for leave to appeal to this Court.  Such leave was declined by Miller J in a judgment delivered on 18 November 2004 (CIV 2003-485-1203).  That judgment conveniently summarises the history of the unfortunate litigation in which Mr Payne has been engaged.  The Judge took the view that, “It is impossible to avoid the conclusion that [the] proceedings are a collateral attack on the [various] decisions of the Family Court.”  He concluded there was no question that was capable of bona fide and serious argument so as to justify a further appeal to this Court.

[4]        Mr Payne then applied, timeously, for special leave to appeal to this Court against both the substantive judgment of Ronald Young J, and the costs ruling.

[5]        The special leave application was listed for hearing on Monday 14 February 2005.  It went off.  It was re-listed for Monday 18 April 2005, and again went off.  The listing for Monday next is therefore the third occasion on which the matter has been listed for hearing in this Court.

[6]        On 22 April 2005 Mr Payne applied for an adjournment of the fixture on 16 May 2005. 

[7]        Subsequently, Mr Payne objected to the President dealing with that application, and it is that application for an adjournment which is presently before us.

[8]        The application is put on the footing that there is what Mr Payne describes as a “sequencing issue”.  He says that his “house title case”, which “underlies” the judicial misfeasance and public office case, was before the Court of Appeal on 10 May 2005, together with an application to recall a decision of the President relating thereto given on 5 March 2003.  That hearing in fact proceeded and judgment was reserved.  Mr Payne says there should be an adjournment of his special leave application until that judgment is available.

[9]        The present application turns on flawed reasoning:  that the application for special leave to appeal is somehow inextricably dependent upon those other matters which are extant before this Court.  That proposition, with all respect to Mr Payne, is misconceived.  There is no necessary connection to the other matters extant before this Court, in relation to the special leave application.  The special leave application falls to be determined solely on the considerations relevant to an application of that character.

[10]      Further, the allegations made by Mr Payne were of distinct gravity, against three judicial officers.  It is appropriate that allegations of that character be dealt with promptly, both in the interests of the parties concerned, and in the public interest.  In our view, the special leave application can, and should be, determined on Monday next.

[11]      The application for an adjournment is therefore declined.  The consequence is that Mr Payne must appear and be prepared to support his special leave application, in the usual way, on Monday next.

Solicitors:
Crown Law Office, Wellington