Prescott v Police - [2019] NZCA 380

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA173/2019
[2019] NZCA 380

BETWEEN	PETER RICHARD PRESCOTT Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	12 August 2019
Court:	Brown, Clifford and Collins JJ
Counsel:	Applicant in person G M Taylor for Respondent
Judgment:	22 August 2019 at 2.30 pm

JUDGMENT OF THE COURT

AThe application for extension of time to file an appeal is declined.
BThe application to stay execution of the costs order is declined.
CThe applicant is to pay one set of costs to the respondent on a band A basis with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

Mr Prescott has filed:
(a)an application to extend time to file an appeal from a judgment of the High Court delivered on 15 February 2019,[1] striking out his application for judicial review of a decision of the District Court in a criminal matter; and
(b)an application to stay execution of an order for costs made against him when the High Court struck out his application for judicial review.[2]

Background

[1]Court of Appeal (Civil) Rules 2005, r 29A.

[2]Rule 12(3).

On 20 July 2016, a speed camera recorded a vehicle being driven on Triangle Road in Massey, travelling in excess of the 50 km/h speed limit.
The vehicle had a “trade plate” number X7760. A trade plate is a temporary plate that may be issued by the Registrar of Motor Vehicles pursuant to reg 25 of the Land Transport (Motor Vehicle Registration and Licensing) Regulations 2011. A person to whom a trade plate is issued may operate a motor vehicle even though the vehicle is not registered, provided the vehicle is only used for a purpose for which the trade plate is issued.[3] Inquiries by the Police Infringement Bureau revealed that trade plate X7760 was issued to Peter Richard Prescott of Online Car Care, 1/14A Target Road, Totara Vale, Auckland.
[3]Land Transport (Motor Vehicle Registration and Licensing) Regulations 2011, reg 26.
On 2 August 2016, the police served on Mr Prescott an infringement notice alleging he had driven the vehicle in question. Mr Prescott contested the infringement notice and sought a hearing, which was scheduled for 27 October 2016 before two Justices of the Peace. Although he was advised of the hearing date Mr Prescott did not attend the hearing. The police proceeded by way of formal proof. The Justices of the Peace found the offence proven and ordered Mr Prescott to pay a fine of $80 and court costs of $30.
Mr Prescott appealed to the District Court. On 21 March 2018, Judge Tremewan dismissed Mr Prescott’s appeal.[4] In her judgment the District Court Judge said that the vehicle was registered in Mr Prescott’s name.[5]
[4]Police v Prescott [2018] NZDC 5372 [DC appeal].
[5]At [2].
Mr Prescott could have sought leave to bring a second appeal under s 237 of the Criminal Procedure Act 2011, on the basis that his proposed appeal involved a matter of general or…

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: [2019] NZCA 380
Decision Date: 22 August 2019 at 2.30 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application by Peter Richard Prescott against the New Zealand Police. Mr Prescott sought an extension of time to file an appeal against the High Court’s decision to strike out his application for judicial review of a District Court decision in a criminal matter. He also sought to stay execution of a costs order made against him when the High Court dismissed his application for judicial review. The High Court had dismissed the application for judicial review on the ground that it was an abuse of process. The Court of Appeal was required to determine whether an extension of time to file an appeal should be granted and whether execution of the costs order should be stayed.

The Court of Appeal first considered the application for an extension of time to file an appeal. The Court identified that the length of the delay in this case was not significant and that the respondent would not be prejudiced if an extension of time to commence an appeal was granted. The Court noted that the reasons for the delay and Mr Prescott’s conduct were attributable to him being self-represented and his lack of familiarity with the Court’s processes. These factors weighed in favour of the application being granted. However, the Court found that Mr Prescott’s application for judicial review was an abuse of process and that the proposed appeal was devoid of merit. The Court concluded that the proposed appeal had no chance of succeeding and that an extension of time should not be granted.

The Court of Appeal also considered the application to stay execution of the costs order. The Court found that the application for an extension of time to bring an appeal had no merit, and therefore, there was no merit to the application to stay execution of the costs order.

The Court of Appeal declined the application for an extension of time to file an appeal and the application to stay execution of the costs order. The applicant was to pay one set of costs on a band A basis with usual disbursements.

Orders