Prescott v Police - [2021] NZHC 941

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-0936

[2021] NZHC 941

BETWEEN
PETER RICHARD PRESCOTT

Applicant

AND

NEW ZEALAND POLICE

Respondent

Hearing: On the papers

Appearances:

Applicant in person

G M Taylor for the respondent

Judgment:

30 April 2021

JUDGMENT OF JAGOSE J

[Leave to appeal refusal of recall]

This judgment was delivered by me on 30 April 2021 at 10.00am.
Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:
Crown Law, Wellington

Copy to:
Applicant

PRESCOTT v NEW ZEALAND POLICE [2021] NZHC 941 [30 April 2021]

[1] Mr Prescott applies for leave to appeal my 12 March 2021 judgment,1 refusing to recall my 15 February 2019 judgment,2 which struck out his application for judicial review of the District Court’s dismissal of his appeal against the decision of two Justices of the Peace he pay a fine of $80 and court costs of $30 in relation to a speeding infringement.3

Approach to applications for leave to appeal

[2] Section 56(3) of the Senior Courts Act 2016 prohibits appeals of orders or decisions on interlocutory applications in civil proceedings without this Court’s leave. By ‘interlocutory’ is meant “for some relief ancillary to that claimed in a pleading”;4 here, for recall of my substantive judgment.

[3]The object of requiring such leave is:5

… to limit the cases which may go on appeal in the interests of finality of litigation and the workload of the [appellate] Court while preserving the integrity of the law and the interests of justice.

The Court of Appeal recently endorsed this Court’s approach to leave as a “filtering mechanism”,6 noting its own approach to be similar:7

… leave to appeal should only be granted where the significance or implications of an arguable error of fact or law, either for the particular case or for the applicant or as a matter of precedent, warrants the further delay which the appeal process would involve.

There is no reason for this Court’s approach to be seen any differently, and it is not.8 The question is if there is something justifying interlocutory appeal.

1      Prescott v New Zealand Police [2021] NZHC 483.
2      Prescott v New Zealand Police [2019] NZHC 175.
3      Prescott v New Zealand Police [2018] NZDC 5372.
4      Senior Courts Act 2016, s 4(1) definition of “interlocutory application”.
5      Sandle v Stewart [1982] 1 NZLR 708 (CA) at 715.
6      Greendrake v District Court of New Zealand [2020] NZCA 122 at [6], citing Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].
7      At [7], citing Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17]; and Meates v Taylor (1992) 5 PRNZ 524 (CA) at 526. Similarly, Fairway Holdings Ltd v McCullagh [2018] NZCA 605 at [11]–[14]; and McLaren v McLaren [2018] NZCA 570 at [3]–[5].
8      Li v Chief Executive of Ministry of Business, Innovation and Employment [2018] NZHC 1171, [2018] NZAR 1134…

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: [2021] NZHC 941
Decision Date: 30 April 2021

CaseChat Overview and Summary

Mr. Peter Richard Prescott has applied for leave to appeal the decision of Jagose J, refusing to recall the Court's earlier decision to strike out his application for judicial review of the District Court's dismissal of his appeal against the decision of two Justices of the Peace that he pay a fine of $80 and court costs of $30 in relation to a speeding infringement. The primary legal issue in this case was whether the Court should grant leave to appeal the refusal to recall an earlier judgment. Section 56(3) of the Senior Courts Act 2016 states that leave is required for appeals of orders or decisions on interlocutory applications in civil proceedings. The Court's approach to leave is to limit the cases which may go on appeal in the interests of finality of litigation and the workload of the appellate Court while preserving the integrity of the law and the interests of justice. The Court of Appeal endorsed this approach, noting that leave to appeal should only be granted where the significance or implications of an arguable error of fact or law, either for the particular case or for the applicant or as a matter of precedent, warrants the further delay which the appeal process would involve. The Court found that Mr. Prescott's application for leave to appeal did not meet the criteria for leave to appeal, and dismissed the application.

In dismissing the application, the Court noted that Mr. Prescott's application for recall was "unreasonably denied" and that the Court had erred in fact and in law by failing to address the substance of his complaint against the District Court. However, the Court found that Mr. Prescott's judicial review application was dismissed as an improper collateral attack on his conviction, and that his proposed appeal against the Court's substantive decision was declined as being without merit. The Court also noted that Mr. Prescott's subsequent success in his criminal appeal did not entitle him to seek to set aside orders of the Court made in its civil jurisdiction. The Court found that the integrity of the law and the interests of justice were unaffected, and that finality of litigation was the determining factor in this case. Therefore, the application for leave to appeal was dismissed.

Orders