Police v Prescott - [2018] NZHC 618

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1097

[2018] NZHC 618

BETWEEN
NEW ZEALAND POLICE

Judgment Creditor

AND

PETER RICHARD PRESCOTT

Judgment Debtor

Hearing: 26 March 2018

Counsel:

K M Wakelin for the Judgment Creditor

P R Prescott (Self-represented Judgment Debtor) in Person

Judgment:

9 April 2018

JUDGMENT OF ASSOCIATE JUDGE SMITH

This judgment was delivered by Associate Judge Smith on 9 April 2018 at 3.30 pm at Auckland, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Meredith Connell (Office of the Crown Solicitor), Auckland

Copy To: P R Prescott, Auckland

NEW ZEALAND POLICE v PETER RICHARD PRESCOTT [2018] NZHC 618 [9 April 2018]

[1] The judgment creditor (NZ Police) applies for an order adjudicating the judgment debtor (Mr Prescott) bankrupt.

[2]The background to the adjudication claim is as follows.

[3] On 18 May 2011, Mr Prescott was arrested by NZ Police following a routine traffic stop. Mr Prescott was sitting in his parked vehicle when he was observed by two police constables. One of them approached him with a view to checking whether his vehicle warrant of fitness was current. Mr Prescott declined to let the police constable into his vehicle to see the registration sticker from the inside, and he was subsequently arrested for obstruction of a police officer in the execution of his duty.

[4] Mr Prescott was taken to the North Shore police station for processing, arriving at about 3.25 pm. For part of the time after arriving at the police station, he was held in a cell, before being released on bail at 5.12 pm.

[5] Mr Prescott alleges that his arrest and subsequent detention were unlawful. In 2014, he commenced a proceeding against NZ Police in the District Court at Auckland, claiming damages of $10,000 in respect of an alleged breach of his right not to be arbitrarily arrested or detained1, and $5,000 for an alleged breach of his right to consult and instruct a lawyer2.

[6] Mr Prescott’s claim proceeded to a hearing on 5 and 6 April 2016 before Judge Cunningham. On 10 August 2016, Her Honour delivered a reserved judgment dismissing Mr Prescott’s claim.3

[7]On 17 October 2016, Judge Cunningham awarded costs to the NZ Police of

$27,111.02.

1 New Zealand Bill of Rights Act 1990, s 22.
2 New Zealand Bill of Rights Act s 23(1)(b).
3 Prescott v New Zealand Police [2016] NZDC 14357.

[8] Mr Prescott filed an appeal to this Court against the judgment of Judge Cunningham. He also filed an application for judicial review, alleging among other things, bias on the part of the Judge.

[9] On 4 October 2016, Woodhouse J directed that the judicial review application and the appeal were to be heard together. The judicial review application and the appeal have now been set down for hearing on 14 August 2018.

[10] Mr Prescott applied for a stay of enforcement of the order for costs…

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.

Continue reading Police v Prescott

Details

AGLC: Police v Prescott [2018] NZHC 618
Case: [2018] NZHC 618
Decision Date: 9 April 2018

CaseChat Overview and Summary

The New Zealand Police (NZ Police) filed an application for an order adjudicating Peter Richard Prescott bankrupt. Mr Prescott opposed the application. The primary issue for the Court was whether the adjudication application should be halted until Mr Prescott's appeal and judicial review application are determined. The Court held that the adjudication application should be halted. The Court noted that there was nothing to suggest that Mr Prescott had not been acting in good faith in pursuing his appeal and judicial review application. The Court held that a halt order was appropriate because it was not possible to say at this stage that Mr Prescott had absolutely no prospect of success with his appeal and review application. The Court also noted that there was no evidence of a substantial indebtedness to other creditors, so there was no evidential basis for concluding that a halt order would put others at risk of Mr Prescott defaulting in his obligations. The Court held that while there might be some prejudice to NZ Police if the adjudication application was not halted, it was not clear that it would be appropriate to refuse the halt order on that account. The Court held that it would not have been prepared to grant any halt order in respect of Mr Prescott's attempts to appeal the judgment of Associate Judge Bell on the basis that he is not a person to whom the Insolvency Act 2006 applies. The Court concluded that the adjudication proceeding is halted pending the hearing and determination of Mr Prescott's appeal and judicial review application, which are due to be heard together in this Court on 14 August 2018. The halt order is made on the condition that Mr Prescott complies with any remaining timetable or other directions relevant to the 14 August 2018 hearing; if he does not, leave is reserved to NZ Police to apply by memorandum to have the halt order lifted and the adjudication claim listed in the next reasonably available bankruptcy list.

Orders