Prescott v Police

[2021] NZCA 586

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA313/2021
 [2021] NZCA 586

BETWEEN	PETER RICHARD PRESCOTT Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Clifford and Gilbert JJ
Counsel:	Applicant in person G M Taylor and R M McMenamin for Respondent
Judgment: (On the papers)	10 November 2021 at 10.30 am

JUDGMENT OF THE COURT

The application for an extension of time to apply for leave to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

1. Mr Prescott applies to this Court for an extension of time to apply for leave to appeal a decision of the High Court;[1] the High Court having declined Mr Prescott’s application for that grant of leave.[2]

Background

[1]Prescott v Police [2021] NZHC 483.

[2]Prescott v Police [2021] NZHC 941.

1. In 2016 police issued Mr Prescott an infringement notice for a speeding offence.  Mr Prescott contested that notice and requested a hearing before two Justices of Peace.  Mr Prescott did not attend the scheduled hearing.  On the basis of formal proof the Justices fined Mr Prescott $80 and ordered him to pay Court costs of $30.  On 21 March 2018 the District Court dismissed Mr Prescott’s appeal of that decision.[3] 

   [3]Prescott v Police [2018] NZDC 5372.

2. Mr Prescott applied to judicially review that District Court decision.  In 2019 the High Court struck that application out as an abuse of process.[4]  Mr Prescott subsequently succeeded in a second appeal to the High Court of the original decision of the Justices.[5]

   [4]Prescott v Police [2019] NZHC 175.

   [5]Prescott v Police [2020] NZHC 2191.

3. Following his success in that second appeal Mr Prescott has unsuccessfully sought recall of various decisions of the High Court, this Court and the Supreme Court made in the course of his unsuccessful judicial review proceedings.  Those recall applications were, put simply, attempts to revive that unsuccessful judicial review challenge. 

4. In one of those applications Mr Prescott asked the High Court to recall its 2019 strike-out decision. The High Court’s refusal of that application,[6] and of leave to appeal,[7] lead to this application.

   [6]Prescott v Police, above n 1.

   [7]Prescott v Police, above n 2.

5. Mr Prescott wishes to pursue that appeal under s 56(5) of the Senior Courts Act 2016.  He is out of time to apply to this Court for leave.  He brings this application for an extension of time to do so.[8] 

Analysis

[8]Court of Appeal (Civil) Rules 2005, r 16A. 

1. Mr Prescott’s application for leave to this Court was only three working days out of time.  In terms of the length of the delay, an extension of time would be the expected result.[9]  But, as the courts have now ruled on many occasions, that Mr Prescott succeeded in the High Court on appeal of the District Court decision does not affect the validity of that Court’s dismissal of his earlier judicial review challenge.

   [9]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38(a)].

2. This is in our view, therefore, an obvious case where the absence of any merit whatsoever in the judicial review proceedings Mr Prescott seeks to revive means that an extension of time to apply for leave should be declined.[10]  Mr Prescott’s application for judicial review, before any attempt to exercise his of right appeal, was correctly struck out.  Mr Prescott subsequently succeeded on his second appeal.  There is no reasonably arguable point of law involved in, nor any other reason, public or private, to grant leave to enable Mr Prescott to pursue, an appeal which would revive those judicial review proceedings.[11]

Result

[10]At [39(c)].

[11]At [38(e)].

1. The application for an extension of time to apply for leave to appeal is declined.

Solicitors:
Crown Law Office, Wellington for Respondent