Prescott v Police
[2017] NZHC 620
•3 April 2017
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/DefendantJudgment:
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 the WoF showed an expiry date of July 2011. He told Mr Prescott that the inquiries he had undertaken suggested that the car did not have a current WoF or registration. Thus the officer asked if he might examine the WoF sticker. Mr Prescott told the officer that his information was wrong. Despite this the officer asked to check the sticker himself. Instead, Mr Prescott read the number on the sticker which the officer recorded. He returned to the patrol car and made some further inquiries. In particular, he was told by a more senior officer that the back of the WoF recorded the date, the serial number and the place where the WoF had been issued. He was told to record those details and then check with the Land Safety Transport Authority.
[7] The senior officer advised that if Mr Prescott did not permit the officers to view the WoF he could be warned for obstruction.
[8] The officer then returned to Mr Prescott’s car and advised him he wanted to confirm the number on the WoF. The conversation between Mr Prescott and the officer was recorded by Mr Prescott and a transcript provided to the Court.
[9] From that transcript it is evident that Mr Prescott told the officer he did not want him in his vehicle and that he had given him the number. The officer confirmed with Mr Prescott as to whether he was willing to let him view the WoF to which Mr Prescott responded that he would not give his consent for the officer to enter the vehicle without a search warrant.
[10] The officer then returned to the patrol car where he discussed the situation with his partner. The two officers returned to Mr Prescott’s car. The officer advised he had returned to give Mr Prescott one more opportunity to permit him to examine the WoF. He advised Mr Prescott that if he declined that opportunity it would amount to obstruction and he would be arrested. Mr Prescott responded by stating that he was not obstructing the officer; it was private property and that the officer had stepped outside
his authority. In reply, the officer advised Mr Prescott that unless he permitted him to view the WoF he would be arrested for obstruction and he would not be warned again.
[11] Mr Prescott responded by confirming that he would not permit the officer to enter his vehicle but would read the number.
[12] The officer asked Mr Prescott to confirm that he was refusing entry to the vehicle. Mr Prescott confirmed that was the position following which the officer advised Mr Prescott he was under arrest for obstruction and asked him to step out of his vehicle which he did. Mr Prescott was then arrested, handcuffed and taken to the patrol car where, according to the officers, he was given his rights under NZBORA.
[13] He was then taken to a Police station and processed. For part of that time he was held in a cell before being bailed at 5:12 pm, a little under two hours later.
[14] Mr Prescott claimed the Police deliberately and maliciously prolonged the processing. At the trial it was accepted by the Police that the “booking” procedures which took about 30 to 45 minutes, were twice as long as usual. The watch house sergeant claimed this was a consequence of Mr Prescott’s deliberate actions in obstructing and slowing the process down.
[15] Later, one of the officers who had been involved with Mr Prescott initially and who had taken a photograph of the WoF after Mr Prescott had left the car, confirmed that the WoF was, indeed, valid and the advice given to the Police that it and the registration had expired was incorrect.
Claim
[16] In the District Court Mr Prescott relied on two principal causes of action.
[17] First, he claimed that the traffic stop was arbitrary and in breach of s 21 of NZBORA. As a consequence, he said that the subsequent arrest was also arbitrary. He claimed that he did not obstruct the officer from inspecting the WoF but did refuse the officer’s request to enter his vehicle for that purpose. As such, he claimed there was no obstruction and as a consequence the purported arrest was arbitrary and contrary to his rights in terms of s 22 of NZBORA. He further claimed that he was arbitrarily detained
in the Police cells in breach of s 23(2) of NZBORA. This arose from his subsequent detention for post-arrest and charging processing. He claimed this was unlawful and unreasonable and indicative of malice.
[18] Secondly, Mr Prescott claimed that his right to consult and instruct a lawyer under s 23 of NZBORA was breached. He accepted that his rights had been given to him by the arresting constable (presumably at the time of arrest) but that when he arrived at the Police station he was not afforded the opportunity to contact a lawyer, a right which he said he wished to avail himself of. He accepted that he signed the “Notice to Persons in Custody” form which contained a summary of the relevant NZBORA rights but claimed he never read it having regard to the “stressful, degrading and intimidatory booking process” and the fact the officer never explained to him what he was signing.
[19] Mr Prescott sued for damages totalling $15,000.
Proceedings in this Court
[20] On 30 August 2016 Mr Prescott filed an application for judicial review of Judge Cunningham’s decision. The essence of his claim is that the Judge failed to act fairly, breached the rules of natural justice and demonstrated bias. By way of remedy he seeks reparation in the sum of $20,000 for the harm he suffered as a result of the Judge’s conduct.
[21] On 8 September 2016 Mr Prescott filed a notice of appeal against Judge Cunningham’s substantive decision. He alleged errors of fact and law. Amongst his grounds of appeal was a repetition of the claims of bias on the part of the Judge.
[22] On 4 October 2016 Woodhouse J directed, by consent, that the appeal and the judicial review be heard together given that the subject matter was essentially the same.
[23] On 14 October 2016 Peters J directed that Mr Prescott’s allegations of bias on the part of a judicial officer were not capable of being heard on appeal. That was because those allegations were also included amongst the grounds on which Mr Prescott sought judicial review. Her Honour directed that if the appeal was to be pursued there would need to be a clear delineation between the errors alleged on appeal and the grounds on which review was sought. She gave Mr Prescott leave to file an amended
notice of appeal identifying the errors which he alleged the Judge made and omitting matters falling outside the scope of an appeal.
[24] Her Honour also made an order joining the District Court at Auckland as second respondent on the application for judicial review.
[25] Also, as part of the appeal’s case management process, Mr Prescott applied for an order that the requirement he provide security for costs be waived. On 5 October
2016 Woodhouse J refused Mr Prescott’s application.3 In doing so he traversed Judge
Cunningham’s judgment. His Honour then set out the grounds of appeal in the
following terms:4
“[18] … There are, in essence, two grounds:
(a) The appeal raises issues of substantial public and personal interests. Central to this ground is a contention that Judge Cunningham was biased. Mr Prescott made clear that he is alleging actual bias as opposed to apparent bias. Mr Prescott also submitted that the interests under the Act raise matters of, as he put it, ‘high public interest’.
(b) Mr Prescott’s second ground is that he is impecunious.”
[26] In applying the principles which apply to applications for waiving security for costs his Honour made an assessment of the merits of the appeal. While naturally observing that his assessment could only be provisional he concluded that the prospects of success on the appeal against the specific conclusions of the Judge were “not good”. And even if Mr Prescott was able to establish the Judge erred in respect of one or more of her specific findings, his Honour noted that Mr Prescott would still have to establish he was entitled to recover the damages sought. In relation to that aspect of the claim the Judge described Mr Prescott’s prospects of success as “not at all good”, adding that he considered that:5
“… in substantial measure [Mr Prescott] was the author of his own alleged misfortune. If there was a breach of one or more of his rights there is a real possibility that the only relief he would get would be a declaration to that effect.”
3 Prescott v Police [2016] NZHC 2366.
4 At [18].
5 At [22].
The present application
[27] Mr Prescott’s application to stay enforcement of the costs order lists six grounds. They are detailed, repetitive and not particularly easy to follow. However, in essence, there appear to be three grounds:
(a) the appeal has merit. If successful the costs order will be rendered nugatory.
(b) the costs order is fraudulent and should not be enforced;
(c) Mr Prescott has the right to be presumed innocent until the appeal and the judicial review have been determined by a fair and impartial Court. To refuse the stay would be contrary to Mr Prescott’s rights under NZBORA and New Zealand’s international commitment to human rights and procedural fairness.
Legal principles
[28] Mr Prescott does not cite any rule under the High Court Rules (“the Rules)” or any other provisions which provide jurisdiction for this Court to stay the enforcement of a costs order. However, given that the consolidated proceedings in this Court involve both an appeal and a judicial review, I agree with Ms Todd, for the Police, that it is appropriate to consider Mr Prescott’s application under both the Rules, and the Judicature Amendment Act 1972 respectively. I now do so.
Stay of costs pending appeal
[29] Rule 20.10 applies to applications seeking a stay order or other interim relief pending determination of an appeal.
[30] Rule 20.10 provides:
“20.10 Stay of proceedings
(1) An appeal does not operate as a stay—
(a) of the proceedings appealed against; or
(b) of enforcement of any judgment or order appealed against.
(2) Despite subclause (1), the decision-maker or the court may, on application, do any 1 or more of the following pending determination of an appeal:
(a) order a stay of proceedings in relation to the decision appealed against;
(b) order a stay of enforcement of any judgment or order appealed against;
(c) grant any interim relief.
(3) An order made or relief granted under subclause (2) may—
(a) relate to enforcement of the whole of a judgment or order or to a particular form of enforcement;
(b) be subject to any conditions for the giving of security the decision-maker or the court thinks just.”
[31] A plain reading of this rule reveals that unless the statute conferring the appeal right provides otherwise, the initiation of an appeal does not operate to stay the effect of any judgment being appealed. In the absence of an order from the Court, the successful party is entitled to enforce the judgment given.
[32] In my view there is a fundamental impediment to Mr Prescott’s application. Rule 20.10(2)(b) provides the jurisdiction for the Court to award a stay of enforcement of any judgment or order appealed against. Mr Prescott has appealed Judge Cunningham’s substantive decision of 10 August 2016. Significantly he has not appealed Judge Cunningham’s costs of 17 October 2016. He is now out of time to do so. Rule 20.10(2) requires the judgment or order to be appealed before the power to make a stay of enforcement may be exercised. The judgment in question is the costs decisions. It is not the substantive judgment. Because no appeal has been filed in relation to the costs decision there is no jurisdiction or power for this Court to make an order staying enforcement. For that reason alone the application should be dismissed. However, if I am wrong I turn to consider the principles under r 20.10.
[33] The factors which Courts conventionally address in applications of this kind engage a balancing exercise. The Court must weigh up the entitlement of the successful
litigant to enjoy the fruits of the judgment against the need to preserve the position of the unsuccessful party in the event their appeal is successful.6
[34] These principles were discussed by Hammond J in Dymocks Franchise Systems (NSW) Pty Limited v Bigola Enterprises Limited.7 There his Honour listed various factors which he considered relevant to this exercise. Although that case involved an application for a stay of execution of a judgment pending appeal, in my view the same
principles are applicable and relevant to the present application. They are:
(a) If no stay is granted will the applicants’ right of appeal be rendered nugatory? (b)
The bona fides of the applicants as to prosecution of the appeal.
(c)
Will the successful party be injuriously affected by the stay?
(d)
The novelty and importance of the question involved.
(e)
The public interest in the proceedings.
(f)
The overall balance of convenience.
[35]
As
Hammond J observed although these factors do not represent a
comprehensive list a review of them serves them to illustrate the breadth of the matters which, in any given case, a Court may have regard to in balancing the overall interests of justice.
[36] Applying these principles Hammond J determined that the application should be refused. The unsuccessful applicant immediately applied to the Court of Appeal which
essentially confirmed the approach adopted in the lower Court.
6 Duncan v Osborn Building Limited (1992) 6 PRNZ 85 (CA) at 87 as cited in Dymocks Franchise Systems (NSW) Pty Limited v Bigola Enterprises Limited (1999) 13 PRNZ 48 (HC) at [8].
7 Dymocks Franchise Systems (NSW) Pty Limited v Bigola Enterprises Limited, above n 6 at [9].
Application of these principles to the present appeal
If the stay is granted will Mr Prescott’s right of appeal be rendered nugatory?
[37] The answer to this question is plainly in the negative. A stay will not affect Mr Prescott’s ability to prosecute his appeal on the substantive matter. Whether or not the costs order is enforced will not affect Mr Prescott’s interests under the appeal.
What are Mr Prescott’s bona fides as to the prosecution of the appeal?
[38] I do not doubt that Mr Prescott is sincere in his strongly expressed view that notwithstanding Judge Cunningham’s findings his rights under NZBORA were breached. However, that is not the answer to the essence of the question and the objective assessment of the merits of the appeal and the likelihood of success.
[39] In making this assessment I am conscious that I have not had the benefit of full submissions and, in any event, given the appeal is yet to be determined in this Court it is not appropriate for me to engage in an exhaustive examination of this issue. However, the prospects of success on appeal are, in my assessment, dim. I also note Woodhouse J’s evaluation of the modest prospects of success. I share his Honour’s pessimism.
Will the Police be injuriously affected by the stay?
[40] No particular prejudice or adverse effect has been advanced by counsel and given the identity of the respondent that is not surprising. However, the general principle that the successful party is entitled to enjoy the fruits of its success is well understood and there is no convention I am aware of which assesses that interest as of less value to a Crown entity than to a private litigant. An award of 2B costs is designed to represent two thirds of the daily rate considered reasonable for proceedings of average complexity requiring counsel of skill and experience in the High Court.8 As such a 2B order will seldom equate to the actual costs of the litigation. Public funds have been expended in defending Mr Prescott’s claims. The Police is entitled to recover the public money which is owing. Furthermore, the fruits of success may be measured beyond the monetary. In the litigation before Judge Cunningham there were serious reputational
and credibility attacks made on the Police. Defending those interests carries a value which is difficult to equate to in monetary compensation.
Does the appeal raise novel and important questions or is there a public interest in the proceedings?
[41] While Mr Prescott’s grievances are regarded by him as novel and important, they are not novel or important in the public or precedent setting sense. Mr Prescott’s claim is specific and limited to its own facts. It does not involve significant or important questions relating to the interpretation and application of NZBORA. Indeed, this was commented upon by Woodhouse J who agreed that the appeal did not raise matters of high public importance.9
Where does the overall balance of convenience lie?
[42] As earlier stated, the Crown, as with any other litigant, is entitled to enforce lawful orders made in its favour. Judge Cunningham’s costs order falls into that category. Her costs judgment is entirely orthodox and engages the well settled principles which apply to awards of costs in the civil jurisdiction.
[43] The Crown, as the successful party, is entitled to costs. There is nothing which Mr Prescott advances which displaces the usual presumption expressly recognised in r 20.10(1) that an appeal does not operate as a stay of enforcement of any order or judgment.
[44] I now turn to consider Mr Prescott’s application in light of his judicial review claim.
Stay of costs judgment pending judicial review
[45] Although Mr Prescott does not appear to rely on the provisions of the Judicature Amendment Act 1972, this Court may grant relief under s 8 through the making of interim orders if the Court is of the view it is necessary to preserve or protect Mr Prescott’s position.
[46] Section 8 provides that at any time before the final determination of an application for judicial review, on the application of any party the Court may make interim orders for the purpose of preserving the position of the applicant if the Court is of the opinion it is necessary to do so.
[47] Mr Prescott has not applied under s 8 and thus, on its face, s 8 has no application.
[48] However, even if s 8 applied I am not satisfied it would be appropriate to grant relief by making interim orders staying the enforcement of the costs order. My reasons follow.
[49] Broadly similar considerations apply to those already discussed in the context of the r 20.10 discussion above. This is because under s 8 the threshold question the Court must ask itself is whether the making of interim orders is reasonably necessary to preserve the position of the applicant. It is only after that question has been determined in the affirmative that the Court may exercise its wide discretion to make orders taking into account all the circumstances which include an assessment of the apparent strength or weakness of the claim, the competing advantages or detriments to the parties, the status quo, the balance of convenience, public and private repercussions and the overall justice of the case.10
[50] On the threshold question the applicant must establish he has a position which it is necessary to preserve.
[51] The inquiry which the Court should undertake was described by Henry J in
Woodhouse v Auckland City Council in the following terms:11
“The clear purpose of s 8 is to give a right of protection on an interim basis to an applicant who may otherwise be unfairly prejudiced by reason of the delay in obtaining a final hearing. The lapse of time may in some circumstances render the practical effect of final relief of little or no value; it may put an applicant in a disadvantaged position which it is later found to have been wrong; or it may result in the right to final relief sought having expired altogether. Hence the need for an interim preservation of position. It is therefore important to look at what is being sought by way of substantive relief, to see whether there is a position which should be
10 ENZA Limited v Apple and Pear Export Permits Committee HC Wellington CP 266/00,
18 December 2000 at [16] citing Carlton and United Breweries Limited v Minister of Customs
[1986] 1 NZLR 429per Cooke J at 430.
11 Woodhouse v Auckland City Council (1984) 1 PRNZ 6 (HC) at 8.
preserved and which is the subject of or at least relevant in a significant way
to the substantive application.”
[52] Applying these principles it is necessary to examine what relief is being sought by Mr Prescott in his application for judicial review. He seeks an order quashing Judge Cunningham’s substantive decision and he seeks “reparation of $20,000” for the harm he claims he suffered.12
[53] Thus the position to be preserved, in other words the non-payment of the costs order, is not a circumstance which would unfairly prejudice Mr Prescott or render the practical effect of final relief of little or no value. If Mr Prescott’s application for judicial review is successful Mr Prescott’s liability for costs will evaporate. In that sense it is difficult to see how a refusal of interim relief would disadvantage Mr Prescott and certainly any relief obtained as a result of a successful judicial review will not be nullified or affected by requiring him to pay costs at this stage. If he is successful any payments towards costs can be repaid.
[54] As to Mr Prescott’s prospects of success on the judicial review the same comments Woodhouse J made in respect of the appeal are apt. The chances of success on the allegations of actual judicial bias appear modest. No proper foundation for the claim has been laid. Instead, as Woodhouse J observed, the claim of bias appears to arise out of findings of fact and law made by the Judge against Mr Prescott.13
[55] It thus follows I am not satisfied Mr Prescott has a position which should be preserved.
[56] In any event, even if I am wrong on the threshold question I would not exercise my discretion to make any orders for interim relief. The relevant factors to take into account are essentially the same as those discussed earlier in this judgment in the context of Dymocks Franchise Systems (NSW) Pty Limited v Bigola Enterprises Limited.14
There would be no useful purpose in repeating those considerations all of which, in my view, operate against the exercise of the discretionary assessment in favour of
Mr Prescott.
12 Attached to his claim is a document headed, “Schedule of Damages” which apportions the
$20,000. His claim under s 27(1) of NZBORA (“Rights of Natural Justice”) of $15,000 and
$5,000 for “Reckless conduct showing little or no regard to the consequences”.
13 Prescott v Police above n 3 at [20].
14 Dymocks Franchise Systems (NSW) Pty Limited v Bigola Enterprises Limited above n 6.
Conclusion
[57] For these reasons I am not satisfied that interim relief should be granted.
Result
[58] The application for a stay of the enforcement of the cost award made against Mr Prescott is refused. For completeness I record the Police’s position that it is prepared to accept payment by way of instalments.
Costs on this application
[59] The Police, being the successful party, is awarded costs on a 2B basis.
Moore J
Solicitors:
Crown Law Office, Wellington
Copy to:
The Applicant/Appellant
4