Police v Prescott
[2022] NZHC 306
•28 February 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-002232
[2022] NZHC 306
BETWEEN NEW ZEALAND POLICE
Plaintiff
AND
PETER RICHARD PRESCOTT
Defendant
Hearing: 2 February 2022 Appearances:
P Shackleton and S Farnell for the Plaintiff Defendant in Person
Judgment:
28 February 2022
JUDGMENT OF ASSOCIATE JUDGE GARDINER
This judgment was delivered by me on 28 February 2022 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date.......................................
Solicitors:
Meredith Connell, Auckland
NEW ZEALAND POLICE v PRESCOTT [2022] NZHC 306 [28 February 2022]
[1] The New Zealand Police (the Police) seek an order adjudicating Peter Richard Prescott bankrupt. The Police contend that Mr Prescott committed an act of bankruptcy when he failed to comply with a bankruptcy notice dated
20 November 2020, served on him on 8 December 2020. Furthermore, that Mr Prescott owes the Police a debt of $27,710.46, comprised of costs awards against him made by this Court, the Court of Appeal and the Supreme Court.
[2] An application by Mr Prescott to set aside the bankruptcy notice was dismissed by Associate Judge Bell on 5 May 2021.1
[3] Mr Prescott raises three categories of objection to the application for adjudication:
(a)the Court does not have jurisdiction to adjudicate him bankrupt;
(b)the requirements of s 13 of the Insolvency Act 2006 are not met;
(c)there are active appeals that warrant the application being stayed or refused;
(d)he has other proceedings and alleged claims which must be “set-off” against the debt he owes the Police.
[4] I will consider each of these grounds of opposition in turn. But first, more on the background.
Background
Mr Prescott’s traffic infringement
[5] On 20 July 2016, a car registered in Mr Prescott’s name was captured by a speed camera travelling above the speed limit. Mr Prescott was charged with exceeding the speed limit.
1 Prescott v Police [2021] NZHC 1004 [Bankruptcy notice decision].
[6] Mr Prescott denied the charge. He subsequently failed to appear at a 27 October 2016 hearing before two Justices of the Peace. The Justices found the charge proved in his absence, ordering him to pay a fine of $80 and Court costs of
$30.2
[7] Mr Prescott appealed the Justices’ decision. On 21 March 2018, Judge Tremewan dismissed that appeal.3
Mr Prescott’s attempted judicial review
[8] Mr Prescott sought judicial review of Judge Tremewan’s decision. On 15 February 2019, Jagose J struck out that application and dismissed the proceeding on the grounds it was an abuse of process.4 His Honour awarded costs and disbursements, making Mr Prescott liable for $6,943.96.
[9] Mr Prescott unsuccessfully sought to recall Jagose J’s decision.5 He then applied to the Court of Appeal for an extension of time to appeal against Jagose J’s decision and to stay execution of the costs order. On 22 August 2019, the Court of Appeal declined both applications, awarding the Police costs.6 This decision made Mr Prescott liable for a further $5,798.
[10] Next, Mr Prescott sought leave to appeal to the Supreme Court against the Court of Appeal decision. On 22 November 2019, the Supreme Court declined to grant leave and awarded costs to the Police of $2,500.7
[11] The High Court, Court of Appeal and Supreme Court all indicated that judicial review was an inappropriate procedure to challenge Mr Prescott’s conviction, the proper course being to seek leave to bring a second appeal against Judge Tremewan’s decision.8
2 Police v Prescott DC Waitakere CRI-2016-404-5144, 27 October 2016 at [1].
3 Police v Prescott [2018] NZDC 5372 at [25].
4 Prescott v Police [2019] NZHC 175 [Prescott (HC)] at [10]-[11].
5 Prescott v Police HC Auckland CIV-2018-404-936, 28 February 2019 (minute of Jagose J) at [4].
6 Prescott v Police [2019] NZCA 380 [Prescott (CA)] at [20]-[24].
7 Prescott v Police [2019] NZSC 133 [Prescott (SC)] at [9].
8 See Prescott (HC), above n 4, at [6]-[7]; Prescott (CA) above n 6, at [6] and [18]; and Prescott
(SC), above n 7, at [3].
Prescott’s successful criminal appeal
[12] Mr Prescott then sought leave to appeal Judge Tremewan’s decision out of time. Whata J granted leave on 5 June 2020.
[13] Being a second appeal, Mr Prescott also required leave under s 237 of the Criminal Procedure Act 2011 to bring the appeal. On 27 August 2020, Lang J granted leave for Mr Prescott to bring a second appeal. His Honour also allowed that appeal.9
The Police’s bankruptcy notice
[14] On 20 November 2020, the Police issued a bankruptcy notice in respect of the unsatisfied costs award for $6,943.96 arising from Jagose J’s decision of 15 February 2019. That notice was served on Mr Prescott on 8 December 2020.
[15]Mr Prescott applied on 11 December 2020 to set aside the bankruptcy notice.
Mr Prescott’s attempts to recall judicial review costs awards
[16] Mr Prescott regarded his success on his criminal appeal as having effectively voided the judicial review decisions of the High Court, Court of Appeal and Supreme Court. He applied to each of those courts to set aside or recall their decisions.
[17] Each Court declined to set aside or recall its decision.10 Jagose J further declined leave to appeal against his refusal to recall his judgment of 15 February 2019.11
Mr Prescott’s application to set aside the bankruptcy notice
[18] On 5 May 2021, Associate Judge Bell dismissed Mr Prescott’s application to set aside the bankruptcy notice. His Honour awarded costs to the Police.12 Those costs were later fixed in a decision of 27 May 2021 to be $12,308.50, plus
9 Prescott v Police [2020] NZHC 2191 at [27].
10 Prescott v Police [2021] NZHC 483 at [6]; Prescott v Police [2021] NZCA 24 at [7]; and Prescott v Police [2021] NZSC 18 at [9].
11 Prescott v Police [2021] NZHC 941 at [10].
12 Bankruptcy notice decision, above n 1, at [16]-[17].
disbursements of $160.13 Mr Prescott takes issue with these costs and this issue forms part of his opposition to the Police’s adjudication application.
Police application for adjudication order
[19] The Police filed and served a creditor’s application for an adjudication order on 2 August 2021.
[20] The application seeks orders adjudicating Mr Prescot bankrupt and as to costs. It states Mr Prescott owes Police $27,710.46, comprising:
Amount due in accordance with paragraph
3.2 of the attached judgment obtained by the
$6,943.96
judgment creditor against Peter Richard
Prescott in the Auckland High Court on 15 February 2019 in CIV 2018-404-936
(ii)Plus amount due in accordance with paragraph C of the attached judgment obtained by the judgment creditor against Peter Richard Prescott in the Court of Appeal on 22 August 2019 under CA 173/2019
(iii)Plus amount due in accordance with paragraph B of the attached judgment obtained by the judgment creditor against Peter Richard Prescott in the Supreme Court on 22 November 2019 under SC 97/2019
(iv)Plus amount due in accordance with paragraph 4 of the attached judgment obtained by the judgment creditor against Peter Richard Prescott in the Auckland High Court on 5 May 2021 under CIV-2020-404- 2232
$5,798.00
$2,500.00
$12,468.50
Total due: $27,710.46
[21] The application further states that Mr Prescott has committed an available act of bankruptcy by failing to comply with the bankruptcy notice dated 20 November 2020 in the sum of $6,943.96. It states Mr Prescott has not satisfied the Court he has a counterclaim, set-off or cross demand that equals or exceeds the amount
13 Police v Prescott HC Auckland CIV-2020-404-2232, 27 May 2021 (minute of Associate Judge Bell) at [6]. The costs were assessed on a 2B basis.
of the judgment debt and which he could not have set up in the action in which the judgment or order was obtained.
Principles applicable to applications for adjudication
Insolvency Act 2006
[22] The Court may adjudicate a debtor bankrupt if a creditor has applied under s 13 for the debtor’s adjudication; and the debtor has committed an act of bankruptcy.14
[23] The criteria for when a creditor may apply for adjudication are set out in s 13. The debtor must owe the applying creditor(s) $1,000 or more and have committed an act of bankruptcy within three months of the application being filed; and the debt must be for a certain amount and payable either immediately or at a date in the future that is certain.
[24] Under s 17, a debtor commits an act of bankruptcy if a creditor has obtained a final judgment or order against the debtor for any amount, the execution of which has not been halted by a court, and the debtor, having been served with a bankruptcy notice, has not complied with the requirements of the notice or otherwise satisfied the Court that he or she has a cross-claim against the creditor.
[25] Once the s 13 requirements are established, the creditor is prima facie entitled to an adjudication order.15 However, the Court has a discretion as to whether it adjudicates the debtor bankrupt.16 The Court may refuse to adjudicate a debtor bankrupt if the debtor is able to pay their debts; or it is just or equitable that the Court not make an order for adjudication; or for any other reason.17 The onus is on the defendant to satisfy the Court not to make the order. As this Court has said:18
… the petitioning creditor does not have an automatic right to obtain an order of adjudication, nevertheless the onus in those circumstances is on the debtor to persuade the Court that an order should not be made.
14 Section 11.
15 See Baker v Westpac Banking Corp CA212/92, 13 July 1993 at 5 and 7; and Re Epirosa HC Wellington B498/91, 6 March 1992 at 5 and 8.
16 Section 36.
17 Section 37.
18 Kiwibank Ltd v Hutchin [2015] NZHC 1518 at [26]. See also Baker v Westpac Banking Corp, above n 15, at 5 and 7; and Re Epirosa, above n 15.
[26] The Court of Appeal has observed that s 37 confers a “wide discretion” informed by various factors. These include whether the debtor is able to pay their debts over time, bearing in mind that bringing finality within a reasonable period is the essence of bankruptcy proceedings; whether adjudication is conducive or detrimental to the public interest; and whether adjudication would be pointless because the creditors are unlikely to receive any payment.19
[27] The Court may also, in its discretion, halt or refuse adjudication when the judgment underlying the bankruptcy notice is under appeal and that appeal is still to be decided.20
[28]I will now turn to each of the categories of objection raised by Mr Prescott.
The Court does not have jurisdiction
[29] Mr Prescott raised this objection in his notice of opposition to the application dated 14 October 2021 and an unsworn affidavit filed in support. Then, on 5 December 2021, Mr Prescott purported to file and serve on the Police an “appearance under protest to jurisdiction” pursuant to r 5.49 of the High Court Rules 2016. This repeated and expanded on the objection to jurisdiction made in his notice of opposition. Mr Prescott filed and served a sworn, amended affidavit in support of his notice of opposition on 14 January 2022, which also addressed the Court’s jurisdiction.
[30] The Police object to Mr Prescott’s appearance and objection to jurisdiction filed on 5 December 2021, submitting that it is too late, was not timetabled by Associate Judge Bell, and the arguments made are unsupported by affidavit evidence.
[31] I will consider Mr Prescott’s objection to jurisdiction because he raised the objection in the first document he filed, being his notice of opposition.
[32] Mr Prescott made lengthy oral submissions on this topic at the hearing. He argues that:
19 Body Corporate 68792 v Memelink [2018] NZCA 509, [2019] NZAR 127 at [15].
20 Section 42.
(a)he is a man known as “Peter-richard”, not the defendant Peter Richard Prescott;
(b)he, the man known as Peter-richard, is not “a person” within the meaning of the Insolvency Act 2006;
(c)the defendant, Peter Richard Prescott, is a corporate entity registered with the Minnesota Secretary of State which has no contract or commercial dealings with the Police, the Queen or the Ministry of Business, Innovation and Employment;
(d)therefore, the Police do not have standing to bring the application and this Court does not have jurisdiction under the Insolvency Act 2006 to put the corporate entity Peter Richard Prescott into liquidation;
(e)the New Zealand Police, the Courts and the Queen are fictions; and
(f)because the Police have not rebutted by affidavit his objection to jurisdiction, including the above propositions, they must be accepted as true facts.
[33] I reject the submission that the Court does not have jurisdiction, for the following reasons.
[34] First, Mr Prescott’s argument that he is not a “person” who is subject to the Insolvency Act 2006 is wrong. Mr Prescott made this argument in this Court before, in an application to set aside another bankruptcy notice.21 Associate Judge Bell, rejecting Mr Prescott’s jurisdiction submission, explained why quite clearly this Court has jurisdiction over Mr Prescott personally.22 Furthermore, on a review of a Deputy Registrar’s decision to refuse to waive the filing fee for an application for leave to appeal Associate Judge Bell’s judgment out of time, Brown J in the Court of Appeal agreed with the view of the Deputy Registrar, which coincided with that of Associate
21 Prescott v Police [2017] NZHC 2701.
22 At [27]-[29].
Judge Bell, that Mr Prescott’s proposition as to the meaning of “person” in the Insolvency Act is not arguable.23 When dismissing Mr Prescott’s application for leave to appeal against the decision of Brown J, the Supreme Court said:24
[2] The point which the applicant wishes to advance is that he is not a “person”, and thus not subject to the Insolvency Act 2006. We do not propose to engage with this argument, save to say that is self-evidently wrong.
[35] I concur with these earlier decisions. Plainly, Mr Prescott is a natural person and the Insolvency Act 2006 applies to natural persons.
[36] Second, Mr Prescott’s arguments that the Police, the Court and the Queen are fictions are also misconceived and incapable of serious consideration.
[37] Third, the distinction Mr Prescott seeks to draw between the defendant Peter Richard Prescott and “the man” Peter-richard is nonsensical. On the one hand, he claims that he, the man Peter-richard, is distinct from the defendant Peter Richard Prescott, which he says is a corporate entity. On the other hand, he states that he has changed his name from Peter Richard Prescott to Peter-richard, implicitly acknowledging that he was, before the purported change, known by the name Peter Richard Prescott. As evidence he provides a letter to the Registrar General of Land, Registrar General of the Department of Internal Affairs and Chief Executive Officer of the Ministry of Transport dated 6 March 2018 in which he informs them that Peter Richard Prescott is now to be known as “Peter”. He also provides a copy of his birth certificate dated 28 January 2010 which records his name as Peter Richard Prescott. These documents only serve to reinforce that “the man” Peter-richard and Peter Richard Prescott are one and the same person.
[38] The costs awards were made by this Court, the Court of Appeal and the Supreme Court against Peter Richard Prescott. If Mr Prescott has decided to be called by another name, that does not change anything. There is no evidence that he has formally changed his name. Even if he has, that change is accommodated by a simple change to the intituling. This Court’s jurisdiction is unaffected.
23 Prescott v Police [2018] NZCA 16 at [6].
24 At [2].
[39] Finally, the submission that because the Police have not rebutted by affidavit his assertions they must be accepted as true facts misunderstands the distinction between factual evidence contained in affidavits and legal submission. Most if not all the content of Mr Prescott’s affidavits is legal submission, not evidence. Strictly speaking, most should be struck out as inadmissible for that reason. As Mr Prescott does not have legal representation the Police have not taken the point and nor do I. However, Mr Prescott needs to understand that the un-rebutted statements in his affidavits are no more than legal submissions which the Police have chosen to respond to in a global fashion. The presumption he seeks to enforce does not apply.
[40]I therefore dismiss Mr Prescott’s challenges to the jurisdiction of this Court.
Requirements of s 13 are not met
[41] Mr Prescott raises two arguments here. First, he argues that the Police’s application for adjudication was not filed within three months of the act of bankruptcy occurring, as required by s 13(b). Mr Prescott’s argument appears to be that the act of bankruptcy arose 10 working days after service of the bankruptcy notice on 8 December 2020, after which the Police had three months to file their creditor’s application for adjudication. The Police did not file their creditor’s application for adjudication until 3 August 2021.
[42] Mr Prescott has misunderstood the effect of the application to set aside the bankruptcy notice he filed on 11 December 2020. Rule 24.10 of the High Court Rules provides:
24.10 Setting aside bankruptcy notice
(1) If an application to set aside a bankruptcy notice cannot be heard until after the expiration of the time specified in the notice as the day on which the act of bankruptcy will be complete, the time is treated as extended until the application has been determined.
(2) An act of bankruptcy is not committed by reason only of non-compliance with the notice until the application has been determined.
(emphasis added)
[43] Accordingly, the time for compliance with the bankruptcy notice was extended until Mr Prescott’s application to set aside the bankruptcy notice was determined on 5 May 2021. This was explained to Mr Prescott by Associate Judge Bell when he delivered his decision dismissing Mr Prescott’s application to set aside the bankruptcy notice on 5 May 2021:25
[16] I dismiss Mr Prescott’s application to set aside the bankruptcy notice. With the dismissal of the application, the time for complying with the bankruptcy notice has come to an end. The time for beginning a bankruptcy application against Mr Prescott has now started to run under ss 13 and 16 of the Insolvency Act 2006.
(footnotes omitted).
[44] The Police therefore had three months, from 5 May 2021 to 5 August 2021, to file their creditor’s application for adjudication. The Police filed their application for adjudication on 3 August 2021, which was, therefore, within time.
[45] Second, Mr Prescott argues that because the debt is overstated, the requirement of s 13(c) that the debt is for a certain amount is not met. Mr Prescott’s focus is on Associate Judge Bell’s award of costs (the Associate Judge Bell Cost Decision).26 Mr Prescott takes issue with this costs award, maintaining that it is based on an overstatement by counsel for the Police as to the actual hours worked on the Police’s opposition to Mr Prescott’s application to set aside the bankruptcy notice. Mr Prescott has filed a proceeding in the Waitakere District Court against Ms Alexandra Tumahai, a former employee of Meredith Connell and co-counsel representing the Police in that application. In that proceeding, Mr Prescott seeks information from Ms Tumahai about Meredith Connell’s fees and time records. He also alleges that Ms Tumahai breached the Lawyers and Conveyancers’ Act (Lawyers: Conduct and Client Care) Rules 2008 and committed various offences under the Crimes Act 1961. Ms Tumahai denies the allegations. She says her calculation of the costs in respect of the defended bankruptcy hearing was made with reference to Schedules 2 and 3 of the High Court Rules 2016.
25 Bankruptcy notice decision, above n 1, at [16].
26 Police v Prescott HC Auckland CIV-2020-404-2232, 27 May 2021 (minute of Associate Judge Bell).
[46] Mr Prescott advanced the same arguments about the costs claimed by the Police before Associate Judge Bell, which the Judge considered in his decision. The Judge said:
[3] Mr Prescott has filed two memoranda. In the first one he complains that counsel for police has not said what amounts to a “day” under schedules 2 and 3 of the High Court Rules. He asks the court to make orders against counsel for the police, requiring her to say what a legal day is under the Rules. In his second memorandum, he objects to costs being fixed until this information has been provided.
[4] Mr Prescott is not legally qualified. Nevertheless, he has had experience of costs orders being made against him. I am aware from other cases in which I have heard him that he does have some knowledge of the law, albeit imperfect. He will know that under the High Court’s Rules cases are categorised according to their complexity. Category 2 is appropriate for a standard application to set aside a bankruptcy notice. That fixes the daily rate. There are time allocations for steps taken. The time allocations are A, B or C. The police have appropriately claimed under band B for each step.
[5] In allocating time, the time allocation will not depend on the actual time spent by a party on a step. Mr Prescott’s enquiries as to the meaning of “day” are simply time-wasting stalling.
[6] The police have correctly calculated costs. Accordingly, I fix costs payable by Mr Prescott at $12,308.50 plus disbursements of $160.00, a total of $12,468.50.
[47] Mr Prescott has not appealed the Associate Judge Bell Cost Decision to the Court of Appeal. The time to bring that appeal has now expired.27 Therefore, the amount of the costs awarded against Mr Prescott in relation to his unsuccessful application to set aside the bankruptcy notice is certain.
[48] The Police note that on around 21 June 2021, Mr Prescott served on them an application for leave to appeal the Associate Judge Bell Cost Decision. Mr Prescott also emailed a copy of this application to the Court Registry, but it was not accepted for filing as Mr Prescott did not pay the filing fee. In any case, Mr Prescott did not need the leave of this Court to appeal the decision. It was appealable as of right in accordance with ss 27 and 56(1) of the Senior Courts Act 2016. Counsel for the Police referred me to earlier decisions of Associate Judge Bell on Mr Prescott’s applications to set aside other bankruptcy applications, where the Judge spelt out the appeal pathway to Mr Prescott. As noted, the time to make that appeal has expired.
27 Court of Appeal (Civil) Rules 2005, r 29.
[49] Similarly, the other costs awards that comprise the debt are certain. Mr Prescott’s attempts to recall, review or appeal the judgments in the High Court, Court of Appeal and Supreme Court have already been dismissed.
[50] Finally, even if Mr Prescott has doubts about the Associate Judge Bell Cost Decision, it forms only part of the debt included in the creditor’s application. The Court is entitled to adjudicate Mr Prescott bankrupt in respect of the balance of
$14,791.
[51] Although Mr Prescott did not specifically address s 13(d), I record that the requirement that the debt is immediately payable is also met. Mr Prescott did not apply for a stay of execution of Associate Judge Bell’s cost order. The order is immediately enforceable, as are the other High Court, Court of Appeal and Supreme Court costs orders. Associate Judge Bell explained that the costs order of Jagose J was immediately enforceable in his judgment dismissing his application to set aside the bankruptcy notice.28
Active appeals
[52] Mr Prescott asks the Court to halt or refuse the application under s 42 of the Act because of two “active” appeals.29 The first is “an active appeal in play to have the order of Justice Jagose set aside: CA173/2019”. The second is the “application for leave to appeal the judgment of Associate Judge Bell … served on the creditor on 21 July 2021”. At the hearing, Mr Prescott confirmed that it is these two appeals that he relies on.
[53] In fact, there are no active appeals. The judgment underlying the bankruptcy notice is the judgment of Jagose J dated 15 February 2019. There is no active appeal in relation to that judgment (or indeed any of the decisions of Jagose J). Proceeding CA173/2019 refers to Mr Prescott’s application for an extension of time to file an appeal against the judgment of Jagose J and for a stay of execution of the order for costs made by Jagose J when delivering that judgment. The Court of Appeal declined
28 Bankruptcy notice decision, above n 1, at [9], [10] and [13].
29 Notice of opposition dated 14 October 2021 at [6.1] to [6.4].
to extend the time to appeal and to stay execution of the costs order on 22 August 2019. The Supreme Court subsequently declined leave to appeal the Court of Appeal’s decision.
[54] Mr Prescott’s application to set aside the Court of Appeal decision was further declined by the Court of Appeal on 24 February 2021. His application to recall the Supreme Court decision was dismissed on 5 March 2021. Mr Prescott’s application to recall the Jagose J decision was dismissed on 12 March 2021 and Mr Prescott’s subsequent application for leave to appeal that decision was dismissed on 30 April 2021.
[55] As I have already discussed, there is no active appeal against the Associate Judge Bell Cost Decision. Even if there was, this is not the judgment underlying the bankruptcy notice, so the s 42 discretion is not engaged.
Proceedings and claims by way of set-off
[56] Mr Prescott refers to several other proceedings and alleged claims by way of “set-off” against the debt owed to the Police.30 These are:
(a)two proceedings brought by Peter-richard against the Police and others, CIV-2021-044-01082 and CIV-2021-044-1079;
(b)the District Court proceedings against Ms Tumahai;
(c)a counterclaim “to be completed”;
(d)a “Police breach of contract to be completed”; and
(e)an “action against Prosecuting Sergeant Coffey to be completed”.
[57] As the Police has established the s 13 requirements, they are prima facie entitled to an adjudication order. The onus is on Mr Prescott to persuade me to exercise my discretion to refuse to adjudicate him bankrupt because he is solvent, or it would
30 Notice of opposition at [7.1].
be just and equitable to refuse, or for some other reason.31 I consider the proceedings and claims Mr Prescott refers to in his notice of opposition in that context.
[58] Mr Prescott signposted these potential claims against the Police at the hearing for the application to set aside the bankruptcy notice. Associate Judge Bell recorded that Mr Prescott did not rely on the claims to set aside the bankruptcy notice. Associate Judge Bell informed Mr Prescott that if he wished to rely on them in any subsequent bankruptcy proceedings, he would need to provide good evidence. He said:32
Mr Prescott did not adduce any evidence in support of those claims. If he does wish to raise cross-claims against the police on a bankruptcy application, he will need to show a good evidential basis for them.
[59] Again, Mr Prescott has not adduced any evidence to substantiate the claims that he refers to in his notice of opposition. That is despite him having filed one unsworn and two sworn affidavits in support of his opposition, and a further bundle of documents during the hearing.
[60] Considering the claims and potential claims listed at [56] in reverse order, nothing is known about the potential claims at (c) to (e). From their description in Mr Prescott’s notice of opposition, they have not yet been initiated. Mr Prescott did not address them in his oral submissions. He has not filed any evidence relating to these potential claims. They do not provide me with any cause to exercise my discretion to decline to make the order.
[61] I have touched on the Tumahai proceedings at (b) already when considering Mr Prescott’s argument that the requirements of s 13 are not met. Mr Prescott made lengthy oral submissions on the Police’s conduct in claiming 2B costs following his failure to set aside the bankruptcy notice. His complaint is that the Police, through their legal counsel, have claimed and been awarded costs that exceed the costs they actually incurred. This, Mr Prescott maintains, breaches the general principle found at r 14.2(1)(f) that an award of costs should not exceed the actual costs incurred by the party claiming costs.
31 Kiwibank Ltd v Hutchin, above n 15, at [25]-[26]; Baker v Westpac Banking Corp, above n 15, at 4; and Re Epirosa, above n 15, at 5 and 7.
32 Bankruptcy notice decision, above n 1, at [15].
[62] It is not for me to decide the Tumahai proceeding, but I can form an impression of the merits from the statement of claim,33 the memoranda as to costs filed by the Police and Mr Prescott following Associate Judge Bell’s dismissal of Mr Prescott’s application to set aside the bankruptcy notice, and the Associate Judge Bell Cost Decision.
[63] I can find no support for Mr Prescott’s concern. Mr Prescott appears to have misunderstood the Police’s memorandum as to costs dated 26 May 2021 where they stated that because the High Court Rules prescribe the amount of time that can be claimed for each step (measured in days or part days), the calculation is not dependent on actual time spent, but rather the time for each step prescribed by the rules. From this statement, Mr Prescott seems to have inferred that the Police claimed scale costs that exceeded the actual costs they incurred. But Christine Scott, Legal Counsel for the Police, confirms in her affidavit in reply that the invoices issued by Meredith Connell and paid by the Police for their time spent opposing the application to set aside the bankruptcy notice exceed the costs awarded by Associate Judge Bell.34 Furthermore, Ms Tumahai has filed an affidavit affirming that she simply calculated 2B scale costs with reference to Schedules 2 and 3 in an orthodox fashion.35 Associate Judge Bell found that Category 2 is appropriate for a standard application to set aside a bankruptcy notice. He also found that the Police had appropriately claimed under band B for each step.
[64] Therefore, I am not persuaded that I should exercise my discretion to deny the Police the order to which they are prima facie entitled, because of the Tumahai proceeding. My impression is that the complaint is misconceived. Furthermore, the Associate Judge Bell Cost Decision will stand irrespective of its outcome.
[65] Finally, I turn to the two proceedings described at [56](a). Mr Prescott briefly referred to these proceedings in his notice of opposition to the Police’s application. He did not address them in his unsworn/unaffirmed affidavit in support of his opposition dated 14 October 2021, or the affidavit sworn and filed on 7 December
33 Exhibit Q, affidavit in reply of Christine Margaret Scott affirmed 4 November 2021.
34 Affidavit in reply of Christine Margaret Scott affirmed 4 November 2021 at [22].
35 Affidavit of Alexandra Lydia Tumahai affirmed 4 November 2021 at [3].
2021. In an affidavit in response affirmed on 4 November 2021, Ms Scott affirmed that she was unaware of the proceedings and they had not been served on the Police. She then affirmed a supplementary affidavit on 1 February 2022 deposing that on 24 December 2021 copies of proceedings with CIV numbers corresponding to those described in Mr Prescott’s Notice of Opposition were left at the Orewa Police Station counter. She attached copies of the proceedings to her affidavit. Ms Scott deposes that the Police’s position is that the proceedings have not been properly served, and that once service issues have been clarified, the proceedings will be defended by the Police.
[66]Ms Scott explains:36
The claims relate to a traffic infringement notice issued to Mr Prescott in November 2017. Mr Prescott challenged the infringement notice and a hearing was held before two Justices of the Peace on 17 April 2018. Mr Prescott did not attend the hearing. Having heard evidence from the Police, the Justices of the Peace determined the charge was proved and Mr Prescott was fined $200 being the amount of the infringement and Court costs of $30.
Mr Prescott later sought leave to appeal out of time and appealed the decision. The matter came before Judge Fraser on 20 August 2020 who, following discussion with the prosecuting Sergeant, dismissed the infringement notice.
[67] Mr Prescott did not address these proceedings in his latest affidavit sworn on 13 January 2022. There was no evidence concerning these proceedings in the bundle of documents he presented during the hearing. So, the only evidence to support Mr Prescott’s appeal to the Court to refuse to make the adjudication order because of these counterclaims against the Police are copies of the proceedings provided by the Police.
[68] Turning to the proceedings, the plaintiff in both proceedings is “Peter-richard (the man)”. In the 1079 proceeding, “Peter-richard” seeks to hold the Police vicariously liable for the actions of Officer Foran, who he claims arbitrarily stopped his car the day he was issued with the infringement notice, failed to inform him of the reasons for his detention and to promptly inform him of the nature and cause of the charges against him, manipulated evidence, and with Officer Stace brought a malicious prosecution of him, in breach of the International Covenant on Civil and
36 Updating affidavit of Christine Margaret Scott affirmed 1 February 2022 at [8]-[9].
Political Rights (ICCPR), the New Zealand Bill of Rights Act 1990 (NZBORA) and the Criminal Procedure Act 2011. He seeks an order for damages of $93,000 along with exemplary damages of $50,000.
[69] In the 1082 proceeding, “Peter-richard” seeks to hold the Police vicariously liable for the alleged negligent acts of Officer Stace in relation to the hearing on 17 April 2018. He claims that Officer Stace and Sergeant Hagen failed to promptly inform him of the nature and cause of the criminal charge against him and acted in bad faith and with malice by bringing a malicious prosecution against him for the traffic infringement, in breach of the ICCPR, the NZBORA and the Criminal Procedure Act 2011. He seeks an order for damages of $74,000 according to a schedule attached to his statement of claim. He also claims exemplary damages of $50,0000 against Officer Stace to “deter others [sic] Police prosecutors that may be tempted [to] defeat justice for pecuniary gain”.
[70] As noted, the s 13 requirements being met, Mr Prescott has the onus of satisfying the Court that it should stay its hand. Mr Prescott has not taken any steps to persuade me that it would be proper to do so to enable him to pursue these proceedings. All I have before me are copies of the statements of claim, provided by the Police. The claims concern a different traffic offence that occurred over four years ago. Mr Prescott did not file the proceedings until over a year after the infringement notice for that offence was dismissed; and after the Police filed this bankruptcy application. It is impossible to know whether the proceedings are genuine, or simply an attempt to deflect the bankruptcy application. The proceedings have not been properly served on the Police and so have barely begun. Once service issues are resolved, the Police intend to defend them. They will not be determined for a considerable time, possibly years. These considerations weigh against the Court refusing to make the order due to these proceedings.
[71] Furthermore, there is a significant public interest in orders of the courts being met. The debts that underpin the bankruptcy application are orders of this Court, the Court of Appeal and the Supreme Court. The first of these orders was made some three years ago. The public interest weighs heavily in favour of these orders finally being enforced.
[72] I have considered whether there are any other grounds upon which the Court might exercise its discretion in favour of Mr Prescott.37 I have been unable to find any. Mr Prescott has not disclosed his financial circumstances. There is no suggestion that he can pay the Police within a reasonable time, or at all.
[73] Balancing these considerations, I reach the view that the discretion under s 37 should not be exercised in favour of Mr Prescott.
Result
[74] I order that Peter Richard Prescott is adjudicated bankrupt. The order is timed at 4.00 pm.
[75] The Police are entitled to their costs on a 2B basis with disbursements fixed by the Registrar.
Associate Judge Gardiner
37 With reference to the factors identified in Body Corporate 68792 v Memelink, above n 19, at [15].
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