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 at [21]–[22].

Discussion

[4]    As with the unsuccessful application for recall,9 Mr Prescott’s application for leave to appeal relies on the success of his second appeal, which this Court upheld on the new ground there was no evidence of how the prosecution discharged its onus to prove beyond reasonable doubt he was the owner of the vehicle photographed by the speed camera, making his conviction a miscarriage of justice.10

[5]    Mr Prescott says his application for recall was “unreasonably denied”, as failing “to follow Court of Appeal precedent” or to give grounds for doing so, and thus was “completely irrational and arbitrary”. He says I erred in fact by failing to address the substance of his complaint against the District Court, and in law by ordering he pay costs. He otherwise reasserts his submissions on the recall application the District Court Judge therefore acted unlawfully, unreasonably and unfairly in dismissing his appeal, and contends my judgment is to be understood as having “evaporated” in the face of his entitlement to “be restored to the position” in which he should have been from the outset.

[6]    Again,11 Mr Prescott misses the point his judicial review application was dismissed as an improper collateral attack on his conviction.12 His proposed appeal against my substantive decision was declined as being without merit.13 He was refused leave for further appeal to the Supreme Court.14

[7]    Mr Prescott, in reliance on his subsequent success in this Court, then applied to set aside the Court of Appeal’s decision declining to grant him an extension of time to appeal against my strike-out judgment. This application was denied, the Court explaining:15

We do not accept that the fact that Mr Prescott was ultimately successful with a criminal appeal entitles him to seek to set aside orders of this Court made in its civil jurisdiction. As Ms Taylor for the respondent submits this Court’s

9      Prescott v New Zealand Police [2021] NZHC 483 at [2].

10     Prescott v New Zealand Police [2020] NZHC 2191 at [26].

11     Prescott v New Zealand Police [2021] NZHC 483 at [3].

12     Prescott v New Zealand Police [2019] NZHC 175 at [6].

13     Prescott v New Zealand Police [2019] NZCA 380 at [19]–[20].

14     Prescott v New Zealand Police [2019] NZSC 133.

15     Prescott v New Zealand Police [2021] NZCA 24 at [6].

decision declining an extension of time to file an appeal was made on the basis that judicial review was not an appropriate remedy and that Mr Prescott should have brought his challenge to the District Court decision by way of a second criminal appeal. An order for costs was appropriate in the circumstances. This Court’s decision remains valid despite the fact that the second criminal appeal brought was ultimately successful.

[8]    Mr Prescott’s similarly sought recall of the Supreme Court’s refusal of leave to appeal the Court of Appeal’s original decision also was dismissed, the Supreme Court explaining:16

The fact that the applicant was ultimately successful on his appeal to the High Court does not  provide  a  basis  for  recall  of  this  Court’s  judgment  of  22 November 2019, which dealt with the procedural difficulties faced by the applicant as a result of his erroneous choice to challenge the District Court decision by way of judicial review instead of by appeal. Nothing in the decision of Lang J alters the fact that the case dealt with in this Court arose from the inappropriate use of the judicial review procedure by the applicant, which led to his judicial review claim being struck out and his subsequent application for an extension of time to appeal to the Court of Appeal being dismissed.

[9]    For all the same reasons, Mr Prescott’s application to recall my judgment was dismissed. Mr Prescott now points to no arguable error of fact or law as would overcome his “erroneous choice” and “inappropriate use” of the judicial review procedure. As the Supreme Court has made plain, the integrity of the law and the interests of justice are unaffected. Finality of litigation is the determining factor.

Result

[10]The application for leave to appeal also is dismissed.

—Jagose J

16     Prescott v New Zealand Police [2021] NZSC 18 at [8].