Prescott v Auckland Council

[2014] NZHC 269

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-000718 [2014] NZHC 269

BETWEEN  PETER RICHARD PRESCOTT Applicant

ANDAUCKLAND COUNCIL Respondent

Hearing:                   On the papers

Appearances:           Applicant in person

J A Hilario for the Respondent

Judgment:                25 February 2014

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Tuesday, 25 February 2014 at 4.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

PRESCOTT v AUCKLAND COUNCIL [2014] NZHC 269 [25 February 2014]

[1]      On 21 January 2013, the District Court dismissed Mr Prescott’s claim against

Auckland Council.

[2]      Auckland Council had issued a rates invoice to the owners of a property in Totara Vale for the sum of $3,417.41.  In response Mr Prescott sent the rates invoice back to the Auckland Council with a $1.00 and a five cent stamp attached.   He stamped across the invoice a message intended to act as a bill of exchange for $1.00. Mr Prescott claims this was an offer of settlement for the rates bill.

[3]      The Council took the view that despite the return of the invoice, the rates had not been paid.  Under s 62(1)(c) of the Local Government (Ratings) Act 2002 the Auckland  Council  recovered  the  rates  owing  from  the  mortgagee,  Sovereign Limited, who debited the owner’s account.

[4]      Mr Prescott then attempted to recover this amount (as well as an additional accounting fee) from Auckland Council in the District Court claiming there had been offer and acceptance of the $1 stamp and $1 bill of exchange in full satisfaction of the invoice. The District Court held there was no offer and acceptance.

[5]      Mr Prescott appealed the decision to the High Court.  On the 17 July 2013 I dismissed the appeal and ordered costs on appeal against Mr Prescott.  In October Auckland Council sought payment of the costs order via bankruptcy proceedings.

[6]      Mr Prescott now seeks leave to appeal out of time to the Court of Appeal against my judgment pursuant to s 67 of the Judicature Act 1967 and r 20.3 of the High Court Rules.

Approach to leave to appeal

[7]      Section 67 Judicature Act 1967 states:

67       Appeals against decisions of High Court on appeal

(1)       The decision of the High Court on appeal from an inferior court is final, unless a party, on application, obtains leave to appeal against that decision —

(a)      to the Court of Appeal;

...

(2)       An application under subsection (1) for leave to appeal to the Court of Appeal must be made to the High Court, or if the High Court refuses leave, to the Court of Appeal.

[8]      The test for an appeal under s 67 is set out in Waller v Hider:1

The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient important to outweigh the cost and delay of the further appeal...

... Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.

Approach to extension of the period to apply for leave to appeal

[9]      The High Court Rules set out the process for applying for leave to appeal. Rule 20.3 states:

(1)       An application for leave to appeal in a case when an enactment provides that an appeal to the court against a decision may not be brought without leave must be made—

(a)      to the decision-maker or, as the case requires, the court; and

(b)      within 20 working days after the decision is given.

[10]     A party may apply for an extension of the prescribed period in which the application for leave to appeal must be made.  Rule 20.3(5) states:

(5)      The decision-maker or, as the case requires, the court may, on application, extend the period for bringing an application under this rule, if the enactment under which the appeal is sought to be brought—

(a)      permits the extension; or

(b)      does   not   limit   the   time   prescribed   for   making   the application.

1    Waller v Hider [1998] 1 NZLR 412 at 413-414.

[11]     In  the  current  situation  the  Judicature Act  1908  does  not  limit  the  time prescribed  for  making  the  application  and  therefore  it  is  possible  to  allow  an extension if appropriate.

[12]     The Court of Appeal in Lupton v Commissioner of Inland Revenue when considering if an extension should be allowed stated that:2

...the ultimate question for this Court is to determine where the interests of justice lie. Four factors are particularly relevant to that inquiry, namely: (a) the length of and reasons for the delay; (b) the conduct of the parties; (c) the extent of prejudice caused by the delay; and (d) the prospective merits of the appeal.

[13]     Each of these factors is considered below.  The first two factors can be dealt with together.

The length of and reasons for the delay and the conduct of the parties

[14]     The appeal was dismissed on 17 July 2013.  The Auckland Council sought payment  of  the  costs  order  via  bankruptcy proceedings  in  October  2013.    The application for leave to appeal was filed on 28 November 2013.  The delay occurred because Mr Prescott claims that he did not believe that the Auckland Council would enforce the costs order, and therefore did not appeal until it sought to do so.

[15]     The Auckland  Council  acted  within  it’s  rights  to  commence  bankruptcy proceedings  when  Mr  Prescott  failed  to  pay  the  costs  order.     The  fact  that Mr Prescott delayed in seeking leave until the bankruptcy proceedings were issued indicates that he did not intend to appeal the substantial decision of the Court, but now seeks to avoid paying the costs order.

The extent of prejudice caused by the delay

[16]     The  prejudice  in  the  delay  is  that  the  Auckland  Council’s  bankruptcy

proceedings against Mr Prescott are now stalled.

2      Lupton v Commissioner of Inland Revenue (2013) 26 NZTC 21-009 at [3].

The prospective merits of the appeal

[17]     Mr Prescott appears to pursue three main appeal grounds:

(a)      That I failed to apply the principles of natural justice and consider all facts and evidence submitted by him;

(b)That the law in respect of contracts is that silence and inaction can operate as acceptance when a offer confers a benefit and that offer and benefit are retained;

(c)      That the legislation which creates the Auckland Council and the Local Government (Rating) Act 2002 has no legal basis as the Governor General has no valid legal power.

[18]     None of the appeal grounds put forward by Mr Prescott have any merit.  The law as to sovereignty and the powers of the Governor General is well established. There is no dispute that the legislation establishing the Auckland Council and the legislation authorising rates is valid.  Nor is there any question around the law on contracts and offer and acceptance and its application in the current case.   The natural justice ground of appeal appears to be based on the fact that in considering the appeal in the High Court I did not consider all of Mr Prescott’s submissions. However it has been established that a judgment does not need to address all legal

arguments or points made.3

Public or private interest

[19]     It is also necessary to consider whether the appeal raises some question of law or fact that has either a public or private interest of sufficient importance4  to justify the cost and delay of the further appeal.  It is clear in this situation that there is no interest that would justify the cost and delay.   I agree with the Auckland Council that this case is essentially a refusal to pay rates with no legal foundation for

doing so.

3      R  v  Nakhla  (No  2)  [1974] 1 NZLR 453; QBE  Insurance  (International)  Ltd  v  Steward

Motorsports European Ltd [2013] NZHC 3457.

4      My Noodle Ltd v Queenstown Lakes District Council (2009) 19 PRNZ 518 at [19].

[20]     Overall I am not satisfied that it would be in the interests of justice to allow an extension of time to appeal to the Court of Appeal.  I therefore decline leave to appeal out of time to the Court of Appeal.

……………………………….

Woolford J