Simpson v Kawerau District Council

[2004] NZSC 13

IN THE SUPREME COURT OF NEW ZEALAND

SC CRI 12/2004

RAYMOND SIMPSON

v

KAWERAU DISTRICT COUNCIL

Coram:Keith J
Blanchard J

Judgment:5 October 2004 

JUDGMENT OF THE COURT

[1]       Mr Simpson seeks leave to appeal to this Court against a decision of the Court of Appeal refusing him leave to appeal to that Court in relation to three convictions under the Dog Control Act 1996.  There is an immediate question as to this Court’s jurisdiction upon which we have sought and received Mr Simpson’s written submissions.  Having considered them we have no need to hear from the respondent, nor is a hearing required, as it is plain that we are unable to hear the proposed appeal.

[2]       The Supreme Court is created by statute, the Supreme Court Act 2003.  Its jurisdiction is both created and limited by statute.  Unless a statutory provision authorises the Court to hear and determine an appeal, the Court has no power to give leave.  It has no inherent jurisdiction.

[3]       The proposed appeal is against a decision in a criminal proceeding.  Section 10 of the Supreme Court Act authorises the Court to hear and determine appeals authorised by, inter alia, s144A of the Summary Proceedings Act 1957.  That states:

144A   Appeal to Supreme Court

(1)With the leave of the Supreme Court, either party may appeal to the Supreme Court against—

(a) a determination of the High Court on a case stated for its opinion under section 107; or

(b)a determination of the High Court (other than a determination made on an interlocutory application (within the meaning of the Supreme Court Act 2003)) made in a general appeal; or

(c)a decision of the Court of Appeal on an appeal under section 144(1).

[4]       We will assume that Mr Simpson was not precluded from applying under s144 for leave to appeal to the Court of Appeal against the decision of the High Court, although we should record that the Court of Appeal concluded, for the reasons it gave, that he was so precluded, and we see no reason to doubt that view.

[5]       Putting that matter to one side, however, there is still a barrier to the question being brought to this Court.  Section 144A relevantly allows an appeal against a decision of the Supreme Court on “an appeal” under s144(1).  A decision of the Court of Appeal refusing special leave to appeal to it is not a decision on an appeal.  It is simply a decision that no appeal shall be permitted.  There is consequently no authorisation given by s144A(1)(c) for this Court to hear an appeal against the Court of Appeal’s refusal of leave.

[6]       Mr Simpson placed some reliance on s144B but that section confers powers only when an appeal is on foot, i.e. when leave has been given.  It has no bearing on the jurisdiction to grant leave.

[7]       It is to be noted that the absence of any jurisdiction to grant leave in this case is consistent with the position in civil cases, where s7(b) of the Supreme Court Act is even more explicit, and with the position of the Court of Appeal formerly in relation to attempts to obtain leave to appeal to the Privy Council against a refusal of leave to appeal from the High Court:  Collier v Elders Pastoral Ltd (1991) 3 PRNZ 478 and Shardy v Circa Holdings Ltd CA250/98, 24 February 1999.