Power v Court of Appeal

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA314/2022
[2023] NZCA 25

BETWEEN	BRETT WILLIAM POWER Appellant
AND	THE COURT OF APPEAL First Respondent
AND	CLIFFORD AND GODDARD JJ Second Respondent
AND	KATHERINE MARIE WHITE Third Respondent

Hearing:	13 February 2023
Court:	Cooper P, Ellis and Churchman JJ
Counsel:	No appearance by Appellant
Judgment:	20 February 2023 at 11.00 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThere is no order as to costs.

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REASONS OF THE COURT

(Given by Cooper P)

Mr Power has appealed against a judgment of the High Court striking out a proceeding in exercise of the power conferred by r 5.35B(2)(a) of the High Court Rules 2016.[1]
[1]Power v Court of Appeal [2022] NZHC 1217 [Judgment on appeal].
The proceeding had been referred to Cooke J pursuant to r 5.35A(1) of the High Court Rules, as the Registrar was of the opinion that on the face of the proceeding it was plainly an abuse of the process of the Court.
In the proceeding, Mr Power purported to seek judicial review of a decision of this Court declining an application for leave to appeal.[2] In its decision, this Court had declined leave for Mr Power to appeal an interlocutory decision of the High Court, which had declined an application he had made for a transcript of a hearing in that Court. Provision of a transcript would have required an order that a transcript be created.
[2]Power v White [2022] NZCA 116.
As the Judge noted, there is no jurisdiction in the High Court to judicially review a decision of the Court of Appeal. [3] Judicial review is not available to challenge the decisions of the senior courts. The decisions of High Court judges are not reviewable by the Court of Appeal.[4] Equally, the decisions of Court of Appeal judges are not susceptible to judicial review.[5] The mechanism by which decisions of the High Court and Court of Appeal are able to be challenged is the exercise of statutory rights of appeal, subject to leave requirements where that is necessary. The Judge was correct to conclude that Mr Power’s claim for judicial review was an abuse of process, and it would be manifestly unfair for the respondents to be required to respond to it.[6] He is essentially seeking to relitigate the issue of whether he should have been provided with this transcript, an issue that has already been determined.
[3]Judgment on appeal, above n 1, at [5].
[4]Bulmer v Attorney-General (1998) 12 PRNZ 316 (CA) at 317.
[5]Nicholls v Registrar of the Court of Appeal [1998] 2 NZLR 385 (CA) at 414.
[6]Judgment on appeal, above n 1, at [5].
The proceeding was properly struck out and this appeal must be dismissed.
We record that when the appeal was called at the scheduled time of hearing, Mr Power did not appear. He had earlier failed to respond to requests by the Registrar that he provide in writing the submissions that he intended to advance in support of the appeal.
We make no order as to costs since the respondents have previously been excused from the need to respond to the appeal.

Result

The appeal is dismissed.
There is no order as to costs.

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal brought by Brett William Power against the Court of Appeal, Clifford and Goddard JJ, and Katherine Marie White. The appeal arose from a judgment of the High Court that had dismissed Mr Power's proceeding as an abuse of process. The proceeding sought judicial review of a decision by the Court of Appeal denying Mr Power leave to appeal an interlocutory decision of the High Court. The High Court had already denied Mr Power's request for a transcript of a hearing, and he sought to challenge this decision through judicial review. The Court of Appeal found that the High Court was correct in dismissing the proceeding as an abuse of process because there is no jurisdiction in the High Court to review decisions of the Court of Appeal. The appeal before the Court of Appeal was to challenge this decision of the High Court.

The legal issues the Court of Appeal had to decide were whether the High Court correctly struck out Mr Power's proceeding for judicial review as an abuse of process, and whether there is a jurisdiction for the High Court to judicially review decisions of the Court of Appeal. The Court of Appeal noted that there is no jurisdiction for judicial review of the decisions of the senior courts, including the High Court and the Court of Appeal. Decisions of these courts can only be challenged through statutory rights of appeal, subject to leave requirements where necessary. The Court of Appeal concluded that the High Court was correct to dismiss the proceeding as an abuse of process because it sought to relitigate an issue that had already been determined. The Court of Appeal also noted that Mr Power did not appear at the scheduled time of hearing and had failed to provide written submissions in support of his appeal.

The Court of Appeal dismissed the appeal, holding that the High Court was correct to strike out Mr Power's proceeding for judicial review as an abuse of process. The Court of Appeal found that there is no jurisdiction for judicial review of decisions of the Court of Appeal, and such decisions can only be challenged through statutory rights of appeal. The Court of Appeal concluded that the High Court was correct to dismiss the proceeding as an abuse of process and it would be manifestly unfair for the respondents to be required to respond to it. The Court of Appeal made no order as to costs since the respondents had previously been excused from the need to respond to the appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established