Prescott v Police - [2020] NZCA 206

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA115/2020
[2020] NZCA 206

BETWEEN	PETER RICHARD PRESCOTT Applicant
AND	NEW ZEALAND POLICE First Respondent DISTRICT COURT AT AUCKLAND Second Respondent

Court:	French and Gilbert JJ
Counsel:	Applicant in person A F Todd for First Respondent
Judgment: (On the papers)	2 June 2020 at 11 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal under r 29A of the Court of Appeal (Civil) Rules 2005 is granted. The applicant is directed to file the notice of appeal not later than 30 July 2020.
BThe applicant is directed to file and serve the case on appeal not later than 30 September 2020.
____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

Mr Prescott wishes to bring an appeal against a decision of the High Court in which Gault J declined his judicial review application.[1] The final date for filing the appeal was 7 February 2020. Mr Prescott did not file any documents in this Court until 5 March 2020. He now seeks an extension of time to appeal under r 29A of the Court of Appeal (Civil) Rules 2005.
[1]Prescott v Police [2019] NZHC 3376.
The application for an extension of time is opposed by the New Zealand police. In accordance with usual practice, the second respondent is not taking an active part in the proceeding.

Background

Mr Prescott issued civil proceedings in the District Court against the New Zealand police alleging a number of breaches of the New Zealand Bill of Rights Act 1990. The claim arose from an incident during the course of which Mr Prescott had been arrested for obstructing a police officer and taken to a police station where he was detained for two hours.
The claim came before Judge Cunningham who found the police had acted lawfully and had not breached the New Zealand Bill of Rights Act.[2]
[2]Prescott v Police [2016] NZDC 14357.
Dissatisfied with that outcome, Mr Prescott then appealed Judge Cunningham’s decision to the High Court. He also initiated judicial review proceedings alleging misconduct on the part of the Judge including bias, intimidation, tampering of the notes of evidence and breach of natural justice.
The appeal and the judicial review proceeding were heard at the same time in the High Court. Gault J upheld Judge Cunningham’s decision and dismissed the judicial review proceedings. He found there was no substance to the allegations against Judge Cunningham.

The application for an extension of time

In determining applications for extensions of time, the Court considers various factors with the ultimate question being what the interests of justice require. The relevant factors include the length of the delay, the reasons for it, the conduct of the parties, prejudice to the respondent, the significance of the issues, and in some limited cases the merits of the appeal.[3]
[3]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38]–[39].
Applying those principles to…

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.

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Details

Case: [2020] NZCA 206
Decision Date: 2 June 2020 at 11 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Mr. Peter Prescott has applied for an extension of time to appeal a decision of the High Court which dismissed his application for judicial review. The New Zealand Police oppose the application. The appeal concerns an incident in which Mr. Prescott was arrested and detained for two hours. The District Court had previously dismissed his claim that the police had breached the New Zealand Bill of Rights Act 1990, a decision which the High Court upheld. Mr. Prescott now seeks to appeal to the Court of Appeal, but he has missed the deadline for filing the appeal. The Court of Appeal must determine whether it is in the interests of justice to grant an extension of time. In determining applications for extensions of time, the Court considers various factors, including the length of the delay, the reasons for it, the conduct of the parties, prejudice to the respondent, the significance of the issues, and in some limited cases the merits of the appeal. In this case, the delay in filing the appeal is short and there is a reasonable explanation for the delay. Mr. Prescott mistakenly thought he needed leave in respect of both the judicial review proceedings and the substantive appeal, and acted promptly to correct the mistake once it was drawn to his attention. The delay has not caused any prejudice to the New Zealand Police, and there is no evidence of obstructive or delaying tactics on the part of Mr. Prescott in the conduct of the litigation. Although the issues raised by the proposed appeal are not significant because they are wholly unsupported by the evidence and the entire appeal is lacking in merit, the Court considers it would be wrong to make merits the decisive consideration given the short period of delay and the absence of any prejudice to the New Zealand Police. The application for an extension of time is granted. Mr. Prescott is directed to file the notice of appeal not later than 30 July 2020, and the case on appeal not later than 30 September 2020.

Orders