Ross v The Queen

[2010] NZCA 530

IN THE COURT OF APPEAL OF NEW ZEALAND

CA301/2010
[2010] NZCA 530

BETWEENJOHN WILLIAM ROSS

Applicant

ANDTHE QUEEN

Respondent

Hearing:8 November 2010

Court:Ellen France, Gendall and Cooper JJ

Counsel:No appearance for Applicant

T Singh for Respondent

Judgment:19 November 2010 at 11 am 

JUDGMENT OF THE COURT

The application for special leave to appeal is declined.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1]        When this matter was called on 8 November 2010, there was no appearance by Mr Ross.  The application for special leave to appeal was declined.  Our reasons follow.

Background

[2]        On 4 January 2008, Mr Ross was issued with an infringement notice for speeding.  A reminder notice was served on him by post on 23 August 2008.  Mr Ross contested liability for the offence and so the matter was set down for hearing before two Justices of the Peace in the District Court.  Mr Ross did not appear at the hearing.  After consideration of his written submissions, the Justices of the Peace “reinstated” the infringement notice, fined Mr Ross and ordered that he pay court costs.  Mr Ross appealed to the High Court.[1]

[1]It appears there may be a question about the availability of an appeal right to the High Court.  That is because of various delays which meant that the notice of hearing was not filed before the expiry of the six month period in s 21(8)(d)(i) of the Summary Proceedings Act 1957.  In the circumstances, we do not resolve this point.

[3]        In the High Court the respondent acknowledged there had been a procedural error.  The correct procedure would have been for the Justices of the Peace to proceed with the hearing in Mr Ross’s absence, or adjourn the hearing.  Proceeding with the hearing required formal proof of the offence to be provided.  This was not done.  Because of this procedural error, Mallon J allowed the appeal and remitted the matter to the District Court for a rehearing.[2]  Mr Ross unsuccessfully applied to the High Court for leave to appeal.[3]  He now seeks special leave to appeal under s 144(3) of the Summary Proceedings Act 1957.

[2]      Ross v New Zealand Police HC Wanganui CRI-2009-483-26, 19 October 2009.

[3]      Ross v New Zealand Police HC Wanganui CRI-2009-483-26, 26 April 2010.

[4]        O’Regan P decided that the application for special leave and the proposed appeal should be heard together.[4]

The decision to proceed in Mr Ross’s absence

[4]      Minute of 27 July 2010.

[5]        The matter was accordingly set down for hearing on 8 November 2010.  The detail of Mr Ross’s interaction with the Registry and the Crown Law Office is set out in the appendix attached to this judgment.  For present purposes we need only note that on 5 November 2010 Mr Ross sought an adjournment of the hearing.  This was opposed by the respondent.  The adjournment was declined.

[6]        Against the background apparent from the appendix and given Mr Ross’s failure to appear when the matter was called, we took the view the application should be declined.  Mr Ross did not take any steps to prosecute the appeal.  He knew he was required to appear on 8 November and did not do so.

The merits of the application

[7]        We have nonetheless considered whether there is anything in the material filed by Mr Ross or arising out of Mallon J’s decision which would give rise to a question of law of the requisite importance.[5]

[5]Section 144(3) Summary Proceedings Act provides that where the High Court refuses leave to appeal, this Court may grant special leave to appeal if the appeal raises a question of law which “by reason of its general or public importance or for any other reason, ought to be submitted” to this Court.

[8]        We accept the respondent’s submission that the only question of law arising during the appeal heard by Mallon J was resolved in Mr Ross’s favour.  The other two matters that arose during the appeal, ie, whether the respondent’s supplementary submissions should have been before the Court and whether Mallon J should have quashed the District Court order without ordering a rehearing do not give rise to a question of law.

[9]        As Mallon J said in her decision declining leave there was no unfairness in the Court considering the respondent’s supplementary submissions.  Indeed, it was in those submissions that the respondent accepted Mr Ross was right.  Similarly, it was a matter for Mallon J whether or not she ordered a rehearing.  The fact that in an earlier case another High Court Judge had allowed an appeal by Mr Ross and quashed the order made in the lower Court is neither here nor there.[6]  The factual position in the earlier case was different in any event.

Conclusion

[6]      Ross v Police HC Rotorua CRI-2004-463-115, 17 March 2005.

[10]      For these reasons, the application for special leave was declined.

Solicitors:

Crown Law Office, Wellington for Respondent

APPENDIX – TIMELINE

13 May 2010	Application for special leave filed.
21 May 2010	Respondent’s memorandum in reply to application setting out grounds of opposition filed.  The respondent says the memorandum was sent to Mr Ross at his address for service: 4B Columbus Crescent, Hastings.
27 July 2010	Minute of O’Regan P directing application be determined together with proposed appeal.  Minute directed Mr Ross to file a memorandum setting out his proposed question of law.  No response to that direction was received.
11 August 2010	Letter advising fixture date and requiring submissions by 15 October 2010 sent to Mr Ross at his address for service.
7 October 2010	Letter from the registry asking if matters in hand for the hearing sent to Mr Ross at his address for service.
15 October 2010	Mr Ross emails the Court indicating he has not received any of the earlier material.
28 October 2010	Mr Ross advised by the registry by letter and email that submissions are to be filed by 5 November 2010.
28 October 2010	Mr Ross emails to say he has not received any communication from the Crown Law Office.
2 November 2010	Further memorandum from the respondent in reply to application sent to Mr Ross at his address for service.
3 November 2010	Email from the registry advising Mr Ross of the time his hearing will begin and advising he will need to seek an adjournment if he is not able to proceed as per the timetable.
5 November 2010	Mr Ross seeks an adjournment.
5 November 2010	Adjournment application declined.