Prescott v Police
[2022] NZCA 387
•18 August 2022 at 3.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA150/2022 [2022] NZCA 387 |
| BETWEEN | PETER RICHARD PRESCOTT |
| AND | NEW ZEALAND POLICE |
| Counsel: | Appellant in person |
Judgment: | 18 August 2022 at 3.30 pm |
JUDGMENT OF MILLER J
(Review of Registrar’s Decision)
The application for review of the Registrar’s decision is dismissed. Mr Prescott must pay security for costs of $7,060 by 1 September 2022.
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REASONS
This judgment responds to an application for review of the Registrar’s decision to refuse to waive security for costs. Mr Prescott argues that his appeal is important and has merit, and that as a pensioner on a limited income he is unable to pay.
The underlying proceeding is an appeal against Mr Prescott’s adjudication in bankruptcy. In support of his appeal he moved in this Court for an order suspending his adjudication pending hearing of the appeal. That application failed.[1]
[1]Prescott v Police [2022] NZCA 302.
The judgment debt was a sum of $27,710.46, comprising costs awards made against Mr Prescott by the High Court, the Court of Appeal and the Supreme Court. The costs awards had their genesis in a traffic infringement notice. Mr Prescott denied the charge but subsequently failed to defend it. He appealed unsuccessfully to the District Court, then sought judicial review. That led to a series of costs awards as his application for review was struck out. All courts indicated that Mr Prescott ought to have sought leave to bring a second appeal against his conviction when dismissing his appeal. In due course he did so, and his appeal was granted in the High Court. It is evident that he thought this vindicated his application for judicial review. But none of the courts concerned acceded to his applications to set aside or recall their decisions. Costs were duly fixed.
Mr Prescott’s reason for resisting bankruptcy was that he had brought or intended to bring proceedings claiming damages from the police which would equal or exceed the equal amount of the debt. This Court found, when refusing on 8 July 2022 to suspend his adjudication, that he is not likely to win an award of damages that would equal or exceed the debt.[2]
[2]At [10].
In a decision of 23 May 2022 the Registrar declined Mr Prescott’s application for a waiver of security. She reviewed the authorities correctly. Turning to impecuniosity, she stated that Mr Prescott has provided no evidence of impecuniosity; he says only that he is a pensioner and cannot afford to pay. He did not disclose evidence of his financial circumstances. As the Supreme Court held in Reekie v Attorney-General, proof that security cannot be provided may require full disclosure of financial circumstances and sources of funding to support the appellant’s lifestyle.[3] She did not seek further financial information from Mr Prescott because she was convinced a waiver would not be appropriate even if he could establish impecuniosity.
[3]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [43].
The Registrar noted that Mr Prescott appeals on the ground that his fair hearing rights were breached because he was unable to hear opposing counsel and the High Court knew this. He says, in substance, that he was denied natural justice. The Registrar concluded that even if he were correct, with the result that he could not make submissions about the merits of his proceedings against the police, it would not have changed the adjudication decision. He had not filed evidence about his proceedings, although he had been told that he needed to do so if he wished to show a good evidential basis for a cross-claim. His proceeding had only just begun, and there was no reason to suppose an award of damages would be made, still less an award of anywhere near the amounts claimed.
The Registrar did not think that this was genuine public interest litigation, and she noted the respondent’s claim that there was an element of vexatiousness. Nor was she prepared to accept that this was an appeal in which costs were unlikely to be ordered against Mr Prescott should he fail.
Mr Prescott renewed his arguments in submissions on this review application dated 29 June 2022. He maintains that he is homeless and struggling to survive on his pension, and cannot afford to pay security. He maintains that he could supply such evidence, but he has made no attempt to do so. In response to the respondent’s point that as a pensioner he will not lose his income in bankruptcy, he submits that he is being discriminated against on the grounds of age. He takes particular exception to the suggestion that there is an element of vexatiousness about his behaviour. He also further argues that he is not obliged to pay security at all because he is a “people of New Zealand” and as such immune from civil or criminal liability, including the payment of fees, fines, costs and security.
I am satisfied that the Registrar was correct. I can state my reasons shortly.
Mr Prescott did not establish that he is impecunious. A bare assertion will not suffice. The pension is not means-tested. I do not accept that he could assume bankruptcy is proof of insolvency. It may be no more than evidence of intransigence.
I am prepared to assume, for present purposes only, that a reasonable solvent litigant might pursue a claim for damages against the police. I express that as an assumption because I am not in a position to evaluate the substantive merits of his claim. The mere fact that he ultimately succeeded in his appeal against the infringement notice could not sustain a claim for damages.
However, the debt on which he was adjudicated bankrupt is only loosely connected to his claim for damages. He persisted, in the face of clear warnings, in pursuing an untenable application for judicial review, and it is that which has led to his liability in costs. It is not a liability so closely connected to his claim for damages as to justify an equitable set-off; responsibility for the debt rests with him alone. It is simply an “asset”; in the form of an alleged entitlement to damages, that would exceed the amount of the judgment debt if fully successful. And as this Court previously held, that is very unlikely.[4] Bill of Rights Act damages are set at modest levels. Further, there is no reason to think his claim for damages will be tried anytime soon.
[4]Prescott v Police, above n 1, at [10].
It follows that there is no reason to suppose the respondent would be refused costs in the event that Mr Prescott’s appeal fails. He submits that the underlying rationale behind costs, and therefore security, is that costs are reserved for cases where the court wishes to indicate its disapproval of the conduct of a litigant whose proceedings are frivolous or vexatious. That argument is plainly wrong: costs almost always follow the result. Nor is he exempt the obligation to pay security.
Mr Prescott complained that the Registrar did not ask him for further evidence of his impecuniosity, but he did not file any further evidence to support his application to review her decision. Because he has not provided any evidence, I am not persuaded that the appeal will not be prosecuted in the event he must pay security. Nor do I accept that it raises issues of sufficient public or general importance to justify waiver of security.
The application for review of the Registrar’s decision is dismissed. Mr Prescott must pay security of $7,060.00 by 1 September 2022.
Solicitors:
Crown Law Office, Wellington for Respondent
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