Prescott v District Court at North Shore

[2019] NZCA 14

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA192/2018
 [2019] NZCA 14

BETWEEN	PETER RICHARD PRESCOTT Applicant
AND	DISTRICT COURT AT NORTH SHORE First Respondent
AND	MALCOLM DENMEAD Second Respondent

Court:	French and Gilbert JJ
Counsel:	Applicant in person A F Todd for First Respondent N A Speir for Second Respondent
Judgment: (On the papers)	20 February 2019 at 10 am

JUDGMENT OF THE COURT

AThe application for an extension of time under r 43 of the Court of Appeal (Civil) Rules 2005 to file the case on appeal and apply for a hearing date is declined. 

BThe appeal is deemed to have been abandoned.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

1. Mr Prescott appeals against a judgment of Davison J declining to make an award of costs in his favour (other than disbursements) on his successful application for judicial review.[1]  The Judge had earlier found that the District Court erred in refusing to accept charging documents presented for filing by Mr Prescott to commence a private prosecution against an Auckland Council officer.[2]  In declining to award costs to Mr Prescott as an unrepresented litigant in the judicial review proceedings, the Judge applied settled principles affirmed in recent decisions of this Court.[3] 

   [1]Prescott v The District Court at North Shore [2018] NZHC 485.

   [2]Prescott v District Court at North Shore [2017] NZHC 2828.

   [3]Re Collier (A Bankrupt) [1996] 2 NZLR 438 (CA); Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2010] NZCA 400, (2010) 24 NZTC 24,500; and Joint Action Funding Ltd v Eichelbaum [2017] NZCA 249, [2018] 2 NZLR 70.

2. Mr Prescott failed to file the case on appeal or apply for the allocation of a hearing date within three months after the appeal was brought.  As a result, he now applies under r 43 of the Court of Appeal (Civil) Rules for an extension of time to do so.  The respondents abide the decision of the Court. 

3. We are satisfied that the application should be declined for the following reasons.  While the delay was short and there is no prejudice to the respondents, this is one of those rare cases where it is readily apparent that the appeal is truly hopeless and cannot succeed.  It is settled law that, absent exceptional circumstances not applicable here, a litigant in person is not entitled to an award of costs, other than for disbursements.  This “primary rule” was reaffirmed by the Supreme Court as recently as November 2018 in McGuire v Secretary for Justice.[4]  The Supreme Court concluded that the primary rule is to be applied and any reform of the law should be effected following proper consultation either by the legislature or the High Court Rules Committee, not by the courts.[5]  Mr Prescott’s proposed appeal to this Court, in which he seeks to challenge the primary rule, is doomed to fail in the light of the Supreme Court’s decision.

   [4]McGuire v Secretary for Justice [2018] NZSC 116.

   [5]At [88] and [90].

4. The application for an extension of time under r 43 of the Court of Appeal (Civil) Rules 2005 to file the case on appeal and apply for a hearing date is declined. 

5. The appeal is deemed to have been abandoned. 

Solicitors:
Crown Law Office, Wellington for First Respondent
Rice Speir, Auckland for Second Respondent