Prescott v Police
[2022] NZCA 302
•8 July 2022 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA150/2022 [2022] NZCA 302 |
| BETWEEN | PETER RICHARD PRESCOTT |
| AND | NEW ZEALAND POLICE |
| Court: | Miller and Collins JJ |
Counsel: | Appellant in person |
Judgment: | 8 July 2022 at 9.30 am |
JUDGMENT OF THE COURT
AThe application for an order suspending adjudication of bankruptcy is declined.
BThe respondent is entitled to costs for a standard application on a band A basis and usual disbursements.
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REASONS OF THE COURT
(Given by Collins J)
Introduction
Mr Prescott has applied under s 416 of the Insolvency Act 2006 for an order suspending the adjudication of his bankruptcy.
Background
The events leading to the current application can be summarised in the following way:
(a)On 20 July 2016, a speed camera recorded that a car registered in Mr Prescott’s name was travelling above the speed limit.
(b)Mr Prescott was sent an infringement notice. He denied the charge.
(c)On 27 October 2016, Mr Prescott failed to appear before Justices of the Peace (JPs), who heard and determined the charge in Mr Prescott’s absence. The JPs imposed a fine of $80 and court costs of $30. Mr Prescott appealed the decision of the JPs.
(d)On 21 March 2018, the District Court dismissed Mr Prescott’s appeal.[1]
[1]Police v Prescott [2018] NZDC 5372.
(e)Rather than seek leave to bring a second appeal, Mr Prescott applied to judicially review the District Court decision. Jagose J struck out Mr Prescott’s application and ordered Mr Prescott pay the respondent costs and disbursements in the sum of $6,943.96.[2]
[2]Prescott v Police [2019] NZHC 175.
(f)Mr Prescott then unsuccessfully applied to have the High Court recall its judgment.
(g)Next, Mr Prescott applied to this Court for an extension of time to appeal the High Court judgment and for a stay of the costs order. On 22 August 2019, this Court declined both applications and ordered Mr Prescott pay the respondent a further $5,798 by way of costs and disbursements.[3]
[3]Prescott v Police [2019] NZCA 380.
(h)Mr Prescott then unsuccessfully applied for leave to appeal to the Supreme Court. The Supreme Court declined leave and awarded a further $2,500 in costs to the respondent.[4]
(i)Mr Prescott then sought leave to appeal the District Court decision out of time. That application was granted by the High Court on 5 June 2020.
(j)On 27 August 2020, Lang J granted Mr Prescott’s application to bring a second appeal and allowed the appeal.[5]
(k)Mr Prescott then applied to the High Court, Court of Appeal and Supreme Court to recall the earlier decisions concerning his failed attempt to judicially review the District Court judgment. Those applications were declined.[6]
(l)On 8 December 2020, the police served a bankruptcy notice on Mr Prescott. That notice stated Mr Prescott owed the police $6,943.96 in relation to the costs award made against him in Jagose J’s decision.
(m)An application by Mr Prescott to set aside the bankruptcy notice was dismissed by Associate Judge Bell on 5 May 2021.[7] The Associate Judge awarded costs of $12,308.50 and disbursements of $160.[8]
(n)On 2 August 2021, the police served a creditor’s application for an adjudication order on Mr Prescott. That application stated Mr Prescott owed the police $27,710.46.
(o)On 28 February 2022, Associate Judge Gardiner adjudged Mr Prescott bankrupt and made a further order for costs.[9] Mr Prescott then filed an appeal against the order adjudging him bankrupt.
(p)On 9 May 2022, Mr Prescott filed his application to suspend the adjudication of his bankruptcy pending the determination of his appeal.
The application
[4]Prescott v Police [2019] NZSC 133.
[5]Prescott v Police [2020] NZHC 2191.
[6]Prescott v Police [2021] NZHC 483; Prescott v Police [2021] NZCA 24; and Prescott v Police [2021] NZSC 18.
[7]Police v Prescott [2021] NZHC 1004.
[8]Police v Prescott HC Auckland CIV-2020-404-2232, 27 May 2021 (minute of Associate Judge Bell) at [6].
[9]Police v Prescott [2022] NZHC 306.
Mr Prescott has filed two sets of submissions from which we distil the following key grounds.
Miscarriage of justice
Mr Prescott contends a miscarriage of justice occurred during the bankruptcy hearing because Associate Judge Gardiner failed to make allowances for his hearing disability. Mr Prescott argues that his disability meant he “technically was not present” at the hearing and that he was effectively excluded from responding in a meaningful way to the creditor’s oral submissions.
Fresh evidence
Mr Prescott relies on a letter from the Independent Police Conduct Authority (the IPCA) dated 27 January 2022. That letter relates to events arising from an incident on 25 November 2017 when Mr Prescott was stopped by a police officer and issued with an infringement notice for driving a vehicle without a warrant of fitness. The IPCA referred to a recording Mr Prescott made of his exchanges with the police officer and the police officer’s subsequent evidence before JPs. The IPCA concluded the police officer probably “unwittingly” misled the Court.
Mr Prescott says the findings of the IPCA conclusively show the police had acted in bad faith when issuing traffic infringement notices against him.
Set-off
Mr Prescott argues that the letter from the IPCA shows he has a claim against the police that far exceeds the debt that led to his bankruptcy. He says that this “set‑off” should now be recognised as a defence to the bankruptcy adjudication and that it would be unjust and inequitable not to suspend the adjudication pending determination of his appeal
Legal principles
The principles that govern an application to suspend adjudication are the same as those that apply for a stay of execution of judgment pending an appeal.[10]
[10]Bioletti v Commissioner of Inland Revenue [2013] NZCA 465 at [3].
Relevant considerations include:
(a)the strength of the appeal;
(b)whether the applicant’s right of appeal will be rendered nugatory if a stay is not granted;
(c)the bona fides of the applicant in prosecuting his appeal;
(d)whether the respondent will be injuriously affected by the stay;
(e)the novelty and importance of the questions involved;
(f)the public interest in the proceedings; and
(g)the overall balance of convenience.
Analysis
Strength of the appeal
In our assessment the High Court was right when it refused to accept Mr Prescott’s set-off argument. Even if there is merit in his allegations against the police, the alleged breaches of his rights are unlikely to lead to the award of any significant sum of damages that would equal or exceed his debt.
Furthermore, there is no merit in the argument Mr Prescott was unable to respond to the creditor’s oral submissions. Even if we assumed for present purposes that Mr Prescott had a disability that made him unable to respond, we have already found that there is no merit to the set-off argument that he proposed to raise.
We acknowledge that Mr Prescott was successful in setting aside the original infringement notice on appeal. However, the costs orders against Mr Prescott were made on the basis that he brought unnecessary judicial review proceedings. This conclusion is unaffected by whether his appeal against the infringement notice was successful.
The strength of the appeal therefore weighs very heavily against suspending the adjudication pending the hearing of the appeal.
Whether the applicant’s right of appeal will be rendered nugatory if a stay is not granted
Mr Prescott can appeal his adjudication to this Court under s 414(2) of the Insolvency Act. His right of appeal will not be rendered nugatory if the suspension application is declined.
The bona fides of the applicant
There is no suggestion Mr Prescott will fail to pursue his appeal, although he has still to pay security for costs or obtain a waiver.
Whether the respondent will be injuriously affected by a stay
Mr Prescott will not suffer any harm if the suspension is not granted. He has not pointed to any specific harm beyond that inherent in being bankrupt. Conversely, the respondent is entitled to the benefit of its judgment in the High Court without further delay.
The novelty and importance of the questions involved
While the allegation of a breach of fair trial rights potentially raises an important issue, the material placed before us leads us to the conclusion that there is little chance of the appeal succeeding.
The public interest in the proceeding
There is no public interest in the application.
The overall balance of convenience
The balance of convenience favours the respondent in this case. No prejudice will be caused to Mr Prescott if the application for suspension is declined. On the other hand, the police are entitled to the benefit of their judgment in the High Court.
Result
The application for an order suspending adjudication of bankruptcy is declined.
The respondent is entitled to costs for a standard application on a band A basis and usual disbursements.
Solicitors:
Crown Law Office, Wellington for Respondent
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