Prescott v Police - [2022] NZCA 387

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA150/2022
[2022] NZCA 387

BETWEEN	PETER RICHARD PRESCOTT Appellant
AND	NEW ZEALAND POLICE Respondent

Counsel:	Appellant in person A B Goosen for Respondent
Judgment: (On the papers)	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.

____________________________________________________________________

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…

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: [2022] NZCA 387
Decision Date: 18 August 2022 at 3.30 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an application for review in the case of Prescott v Police. The appellant, Peter Richard Prescott, sought a waiver of the security for costs required for his appeal against his adjudication in bankruptcy. The appeal stemmed from a series of costs awards related to a traffic infringement notice, culminating in a judgment debt of $27,710.46. Prescott argued that he was unable to pay the security due to his limited income as a pensioner, and he claimed that his appeal had merit and was of significant public interest.

The court was tasked with determining whether the Registrar's decision to refuse the waiver of security for costs was appropriate. It examined whether Prescott had demonstrated impecuniosity and whether his appeal was of sufficient public or general importance to warrant a waiver of security. The court also considered Prescott's arguments regarding alleged breaches of his fair hearing rights and his claims of discrimination and vexatiousness.

In its reasoning, the Court of Appeal found that Prescott had not provided sufficient evidence to support his claim of impecuniosity, and his bare assertions were insufficient. The court concluded that the debt for which Prescott was adjudicated bankrupt was not closely connected to his potential claim for damages against the police, and thus, the claim did not justify an equitable set-off. The court also dismissed Prescott's arguments regarding discrimination and his claim of immunity from civil or criminal liability. The court held that Prescott had not demonstrated that the appeal raised issues of sufficient public or general importance to warrant a waiver of security.

As a result, the Court of Appeal dismissed the application for review of the Registrar's decision. Prescott was required to pay the security for costs of $7,060 by 1 September 2022.

Orders