Prescott v Police - [2020] NZHC 1304

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-2259

[2020] NZHC 1304

BETWEEN
PETER RICHARD PRESCOTT

Appellant

AND

NEW ZEALAND POLICE

First Respondent

DISTRICT COURT AT AUCKLAND

Second Respondent

Hearing: 10 June 2020

Appearances:

Appellant in person

C Paterson (via VMR) for the Respondents

Judgment:

11 June 2020

JUDGMENT OF GAULT J

(Leave to appeal)

This judgment was delivered by me on 11 June 2020 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Parties / Solicitors:
The Applicant
Mr M Hodge and Ms C Paterson, Meredith Connell, Auckland

PRESCOTT v POLICE [2020] NZHC 1304 [11 June 2020]

[1] Mr Prescott seeks leave to appeal against my judgment dated 18 December 2019.1 Leave to appeal to the Court of Appeal is required under s 60 of the Senior Courts Act 2016 because my decision was an appeal from a District Court decision dismissing Mr Prescott’s civil claim for unlawful arrest and detention and denial of the right to consult a lawyer.2

[2]The respondent opposes leave.3

[3] Mr Prescott requested a hearing. While the respondent was content for the application to be determined on the papers, a hearing was allocated for 6 April 2020. Given the COVID-19 lockdown, that hearing was vacated. The hearing was rescheduled following the lockdown.

[4] Mr Prescott has also filed a brief memorandum seeking, in the alternative, recall of my judgment.

Recall

[5] Dealing first with recall, Mr Prescott did not give any particular reason for this alternative, merely indicating he was open to it as a way to alter the judgment before it went on to the Court of Appeal.

[6] There are three recognised categories of cases in which a judgment not perfected may be recalled:4

…first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.

1      Prescott v NZ Police [2019] NZHC 3376 [the judgment].
2      Prescott v NZ Police [2016] NZDC 14357.
3      Insofar as the application was made out of time, the respondent does not oppose an extension of time.
4      Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633; and Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 122, [2010] 1 NZLR 76 at [2].

[7] There is no suggestion that either of the first two categories applies. The third category is intended to be narrow and cases appropriate for recall on that basis are likely to be rare.5 Recall is not a substitute for an appeal. No good reason for it has been suggested and I decline to recall the judgment.

Test for leave for a second appeal

[8]It is well established that…

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] NZHC 1304
Decision Date: 11 June 2020

CaseChat Overview and Summary

In Prescott v Police, the appellant, Mr. Prescott, sought leave to appeal against a decision of Gault J in the High Court of New Zealand, Auckland Registry, dismissing his civil claim for unlawful arrest and detention and denial of the right to consult a lawyer. The first respondent was the New Zealand Police, and the second respondent was the District Court at Auckland. The legal issues before the court were whether the judgment contained errors of law and fact sufficient to warrant a second appeal and whether the judgment should be recalled. Mr. Prescott argued that the arrest was unjustified and that he was not adequately informed of the reason for his arrest, contrary to the New Zealand Bill of Rights Act 1990. The respondents opposed the application for leave to appeal and argued that the grounds of appeal were not sufficiently serious to warrant a further appeal.

Gault J found that Mr. Prescott's arguments did not meet the test for leave to bring a second appeal. The court held that the alleged errors of law and fact were either not sufficiently arguable or did not involve an interest of sufficient importance to outweigh the cost and delay of a further appeal. The court also found that there was no good reason to recall the judgment, as none of the recognised categories for recall applied. The court dismissed the application for leave to appeal and declined to make an order as to costs on the appeal, inviting the respondent to submit memoranda if they wished to pursue costs on the application.

Orders