Prescott v Police - [2017] NZHC 620

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-002164 [2017] NZHC 620

BETWEEN
PETER RICHARD PRESCOTT

Applicant

AND

NEW ZEALAND POLICE First Respondent

DISTRICT COURT AT AUCKLAND Second Respondent

CIV-2016-404-002259

BETWEEN PETER RICHARD PRESCOTT Appellant

ANDNEW ZEALAND POLICE Defendant

Hearing: 9 March 2017

Appearances:

Applicant/Appellant in Person
Alison Todd for the Respondents/Defendant

Judgment:

3 April 2017

JUDGMENT OF MOORE J

This judgment was delivered by me on 3 April 2017 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

PRESCOTT v NEW ZEALAND POLICE [2017] NZHC 620 [3 April 2017]

Introduction

[1] On 5 and 6 April 2016 Judge P A Cunningham heard a civil claim brought by Peter Richard Prescott (“Mr Prescott”) in the District Court. On 10 August 2016 her Honour delivered judgment against Mr Prescott and directed that the defendant, the New Zealand Police (“the Police”), if it sought costs was to file a memorandum with any response by Mr Prescott to follow.

[2] The Police applied for costs and memoranda were filed. Her Honour determined the question on the papers. In a separate judgment delivered on 17 October 2016 she awarded costs in favour of the Police on a 2B basis totalling $27,111.02.

[3] In this Court Mr Prescott then filed both an appeal1 and an application for judicial review2 of Judge Cunningham’s substantive decision of 10 August 2016. Pending the determination of those matters Mr Prescott seeks an order staying the costs award on the basis that not to do so:

“… would be unreasonable, immoral and unjust and in breach of the Court’s implicit human rights obligations when considering the disturbing list of errors and abuses by the Crown [as listed].”

Background facts

The events leading to Mr Prescott’s civil claim in the District Court

[4] Mr Prescott’s civil claim against the Police was founded in two alleged breaches of the New Zealand Bill of Rights Act 1990 (“NZBORA”). These were his right not to be arbitrarily arrested or detained contrary to s 22 of NZBORA and a breach of his right to consult and instruct a lawyer contrary to s 23(1)(b) of NZBORA.

[5] The claim had its genesis in events which took place in Glenfield, Auckland on the afternoon of 18 May 2011. Mr Prescott was seated in his parked car on the side of the road. Two Police officers in a passing patrol car noticed him and a check was run on his licence plate. That inquiry led the officers to believe, wrongly it later transpired, that
the registration and warrant of fitness (“the WoF”) of the car had expired. The same

1 Prescott v New Zealand Police HC Auckland CIV-2016-404-002259.
2 Prescott v New Zealand Police HC Auckland CIV-2016-404-002164.

Police information disclosed that the car was most likely to be driven by Mr Prescott who, apparently, had numerous traffic violations and was known to be difficult to deal with.

[6] One of the officers approached the car. He noted from outside 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: [2017] NZHC 620
Decision Date: 3 April 2017

CaseChat Overview and Summary

In Prescott v Police, the High Court of New Zealand dismissed Mr. Peter Prescott's application to stay enforcement of a costs order made against him by the District Court. Mr. Prescott had lost his civil claim against the Police for alleged breaches of his rights under the New Zealand Bill of Rights Act 1990, and costs were awarded against him. He then filed an appeal and application for judicial review of the District Court's decision, but did not appeal the costs order.

In this Court, Mr. Prescott sought an order staying enforcement of the costs order, arguing that not to do so would be unreasonable and unjust. The Court considered the application under the relevant rules and statutes, and found that Mr. Prescott had not appealed the costs order, so there was no jurisdiction to stay its enforcement. Even if jurisdiction existed, the Court found that the usual presumption that an appeal does not stay enforcement of a judgment should apply, and that the various factors weighed against granting a stay. In particular, the Police, as the successful party, were entitled to enjoy the fruits of their success.

The Court refused Mr. Prescott's application to stay enforcement of the costs order. It noted that the Police were prepared to accept payment by installments. The Court also awarded the Police costs on a 2B basis for this application.

Orders