Prescott v Police - [2022] NZCA 302

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA150/2022
[2022] NZCA 302

BETWEEN	PETER RICHARD PRESCOTT Appellant
AND	NEW ZEALAND POLICE Respondent

Court:	Miller and Collins JJ
Counsel:	Appellant in person A B Goosen for Respondent
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.

____________________________________________________________________

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…

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 302
Decision Date: 8 July 2022 at 9.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Peter Richard Prescott, the appellant, against the New Zealand Police, the respondent. The appellant sought an order suspending the adjudication of his bankruptcy, which had been determined following a series of legal proceedings stemming from a speeding offence. The court had to decide whether to grant the appellant's application to suspend the adjudication of his bankruptcy, which would allow him to appeal the decision without the consequences of bankruptcy.

The primary legal issues concerned the principles governing an application to suspend the adjudication of bankruptcy, and whether the appellant's right to appeal would be rendered nugatory if the suspension was not granted. The court also had to consider the strength of the appeal, the applicant's bona fides, whether the respondent would be injuriously affected by a stay, the novelty and importance of the questions involved, the public interest in the proceedings, and the overall balance of convenience.

The court found that the appellant's appeal was unlikely to succeed, given that the alleged breaches of his rights were unlikely to lead to significant damages. The court also noted that the costs orders against the appellant were made due to his unnecessary judicial review proceedings, which were unaffected by his successful appeal against the original speeding infringement. Furthermore, the court held that there was no public interest in the application, and the balance of convenience favoured the respondent, as the police were entitled to the benefit of their judgment without further delay. Consequently, the court declined the appellant's application for an order suspending adjudication of bankruptcy. The respondent was awarded costs for a standard application on a band A basis and usual disbursements.

Orders