Taylor v Attorney-General HC Tauranga CIV 2009-470-655

[2010] NZHC 1710

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV 2009-470-000655

BETWEEN  MARGARET EDITH TAYLOR AND GRAHAM HERBERT TAYLOR Appellants

ANDTHE ATTORNEY-GENERAL Respondent

Hearing:         10 September 2010 (Heard in Rotorua)

Appearances: F Wood for the Appellants

A M Powell for the Respondent

Judgment:      10 September 2010

[ORAL] JUDGMENT OF WYLIE J

Solicitors:

Davys Burton Lawyers, P O Box 248, Rotorua 3040

Crown Law, P O Box 2858, Wellington 6140

M E TAYLOR AND ANOR V THE ATTORNEY-GENERAL HC TAU CIV 2009-470-000655  10 September

2010

[1]      Mrs Taylor and Mr Taylor have appealed against a judgment given by Judge

L M Bidois in the District Court at Waihi on 29 June 2009.

[2]      The notice of appeal is dated 4 July 2009.  It asserts that the appellants were disadvantaged, because they did not have legal assistance and were “against [the] unlimited  reserves  of  Crown  law”.    It  also  asserts  that  Judge  Bidois  wrongly described Mrs Taylor as being 70-years old, when she was in fact at the time 86- years old.  The appellants request a re-hearing, where all parties present have equal representation.

[3]      The hearing of the appeal has been delayed on a number of occasions.

[4]      A telephone conference was held on 28 October 2009 before Woodhouse J. In the course of that conference, it became clear that the appellants wished to make application to the District Court for a re-hearing.   The Crown consented to that course.  In the course of his minute, Woodhouse J noted as follows:

I also record my advice to Mr Taylor that it is likely to be of considerable assistance to them if they obtain assistance from a  lawyer.   This could include advice as to whether they are entitled to legal aid.

[5]      In the event, the appellants applied to the District Court for a re-hearing. That application was declined.   Judge Bidois concluded that no grounds for a re- hearing had been made out.

[6]      The appeal then came back before this Court.  It was called before Venning J on 23 February 2010.   As at that date, the appellants had still not arranged legal representation.  Venning J noted as follows:

[3]       The appellants have not yet arranged legal representation for the appeal.   Given that a substantial ground for the appeal appears to be a complaint of an inequality in representation, the appellants should have obtained legal representation by now.  They have had from the delivery of the decision in June last year to do so.

[4]       I am prepared to give the appellants a further six week period to obtain legal representation if they are able to do so.  If they are not then they will have to represent themselves at the appeal.  There must be some finality to this appeal given that it relates to matters going back to May 2004.

Venning J allocated a date for the hearing of the appeal as 11 June 2010.  He put in place a timetable designed to ensure the proceedings were ready for hearing.

[7]      The appellants failed to comply with any of the timetable orders put in place by Venning J.

[8]      The appeal came before Woodhouse J again on 11 June 2010.  The appellants applied for an adjournment.  They advised that they had been unable to arrange legal representation and further, that Mrs Taylor’s health was such that she was unable to come to Court and argue the appeal.  His Honour commented as follows:

[4]       Having regard to this decision I advised Mr Taylor that I was not prepared to entertain an application for an adjournment on the basis that he and Mrs Taylor had still been unable to obtain legal representation.

...

[7]      The appeal will proceed on that date unless exceptional circumstances arise.   This is for reasons I endeavoured to make clear to Mr Taylor  during  the  conference.     I  granted  this  adjournment  with considerable reluctance.  Mr Taylor’s failure to make arrangements for his mother so that he could come to Court to present the arguments for the appellants, having failed to get legal representation, borders on contempt of Court.  The need to be here was treated with indifference.  There was not even an application for an adjournment until I initiated the telephone conference because of the respondent’s understandable concerns.

[8]       Mr Taylor spoke at the conference about his and his mother’s rights. These rights are not in any way absolute.   This approach by Mr Taylor, which is not the first occasion, is causing serious disruption and a significant waste of vital resources.  These resources, which include the time of Judges and numbers of registry staff, could have been used to far better effect to deal with the cases of other people who do not treat Court commitments with indifference.  On top of this, of course, the time of counsel for the defendant is wasted and there is additional cost for the defendant which ultimately falls on taxpayers as a whole.

[9]       As  I  said  to  Mr  Taylor  during  the  telephone  conference,  this proceeding must be brought to an end.  To achieve that it is imperative that Mr Taylor now proceed on the basis that if he does not have legal representation for the hearing date, on 10 September 2010, he will have to attend Court himself to conduct the appeal.  He will therefore have to have made arrangements well before 10 September 2010 to ensure that someone other than himself is available on that date to care for Mrs Taylor, if she is not fit enough to travel to the Court for the hearing.

[10]      As advised to Mr Taylor during the conference, if he is unable to get a lawyer to represent him and Mrs Taylor on the appeal on 10 September

2010 and if for some reason he is unable to attend Court on that date to

conduct the appeal, in all likelihood the appeal will be dismissed for want of prosecution.

[9]      Further timetable orders were put in place.   Again, the appellants did not comply with any of the steps required to be taken by them.

[10]     On 7 September 2010, Mr Taylor filed a handwritten note which sought a further adjournment and raised various matters said to be relevant to the appeal.

[11]     In a minute dated 8 September 2010, I advised the parties as follows:

[5]       The minutes issued by Venning and Woodhouse JJ are perfectly clear.  This appeal will proceed on Friday, 10 September 2010 at 10:00 am unless there are exceptional circumstances arising which justify an adjournment.     There  is  nothing  in  [Mr  Taylor’s]  memorandum  of  7

September 2010 which raises exceptional circumstances.  The matters raised by him have been repeatedly raised in the past.  It has been made perfectly clear  by Venning and Woodhouse JJ  that the  matter  must  come  on  for hearing and that if necessary, Mr Taylor will have to make arrangements for his mother’s care, and represent himself if he is unable to find legal representation.      There   is   nothing   new   contained   in   Mr   Taylor’s memorandum   dated   7   September   2010   to   cause   me   to   reconsider Woodhouse J’s observations.

[6]       The appeal will be called on Friday next.  It will of course be open to Mr Taylor to seek a further adjournment at that point of time, but he will have to bear in mind Woodhouse J’s observations.  The grounds advanced to date do not suffice for the grant of a further adjournment.

[7]       Both Mr Powell and Mr Taylor are expected to appear on Friday next, and unless an application for adjournment is made and granted, the appeal will proceed.

[12]     On 9 September 2010, the Court received a letter from Mr Wood of Davys Burton, lawyers in Rotorua.  That letter was copied to the Crown.  Mr Wood advised that the appellants had had significant difficult in arranging representation.   He advised,  in  the  best  traditions  of  the  bar,  that  he  was  prepared  to  act  on  the appellants’ behalf provided legal aid could be confirmed.

[13]    I convened a telephone conference with counsel.   Matters could not be significantly advanced at that conference and the matter has been called before me this morning.

[14]     Mr Wood has now had the opportunity to read the various minutes on the Court file.   Notwithstanding the fact that legal aid has not been granted, he has attended in Court this morning and I am grateful to him in that regard.   He has repeated the request for an adjournment.   He has detailed advice that he has been given  by  the  appellants  as  to  why  they  have  been  unable  to  obtain  legal representation to date.  In brief, it seems that the appellants have approached various lawyers, some in the Auckland area and others in the Tauranga area.   Apparently some or all of those lawyers have taken some time to consider the file and each has ultimately declined to act.   The appellants say that they received advice from the Legal Services Agency and that they were given a list of Auckland lawyers to contact.  The appellants say that they then went back to the Legal Services Agency and were subsequently given a list of Rotorua lawyers who might be prepared to accept instructions.  The appellants say that they received that further list only two days ago and that they then contacted Mr Wood.

[15]     Mr Powell for the Crown accepts that there is no prejudice to the Crown as such.  He is concerned that the integrity of the Police constables has been called into question.  He notes that they have the comfort of the District Court decision and that they would prefer that matters should be brought to a head.  Mr Powell submits that this matter has gone on for longer than anyone could reasonably expect, that the appellants have repeated flouted Court orders.  He submits that the matter should be struck out for want of prosecution.

[16]     I have considered the issues raised by Mr Wood’s application.   I am very reluctantly prepared to grant an adjournment.  I have concluded that an adjournment is appropriate for the following reasons:

a)       The appeal concerns matters of constitutional importance.   It is not obviously devoid of merit.

b)If the proceedings were to be struck out for want of prosecution, I suspect that that would not be the end of the matter as far as the appellants are concerned.  Nor would it be the end of the matter for the Police officers involved.  Their reputations are in issue.  There has

already been media interest in the matters raised.   In my view, it is desirable that the allegations made against the Police officers are finally determined by this Court.

c)         There is no prejudice to the Crown as such.

d)While they have done so at the very last minute, the appellants have now sought to instruct counsel.   Mr Wood is in an unsatisfactory position   because   legal   aid   has   not   as   yet   been   confirmed. Nevertheless, he anticipates that the decision in that regard can be made in a reasonably short timeframe.

I give most weight to b) above.  In the circumstances, I reluctantly grant a further adjournment.

[17]     I  have  discussed  alternative  hearing  dates  with  counsel.    This  matter  is adjourned until 10:00 am on Friday, 10 December 2010 for hearing.

[18]     The appellants must be under no misunderstanding.   This matter has been around for a very long time.   They have repeatedly ignored Court orders.   The timetable which I will shortly put in place must be complied with.  If it is not, then the appellants’ appeal will be struck out without further notice to them.  Further, the disbursements incurred by Mr Powell in attending Court today should properly be met by the appellants and I propose to make an order in that regard.  The matter will proceed on Friday, 10 December 2010 whether or not the appellants receive a grant of legal aid in respect of Mr Wood’s appearance.  If Mr Wood cannot appear, then the appellants will have to appear and represent themselves.  If they do not do so, then there is every likelihood that their appeal will be dismissed because of their failure to prosecute it.

[19]     There is one additional issue that needs to be raised.  As noted, the appellants assert that they did not have legal representation at the hearing before Judge Bidois. While the position is not altogether clear from the papers which have been filed to date, it seems that a lawyer, a Mr Lawes, was at one stage retained by the appellants.

He filed memoranda with the District Court subsequent to the hearing seeking extensions of time within which the appellants’ submissions could be lodged.  It is clear from those memoranda that he was having some difficulty in obtaining instructions from the appellants.

[20]     In my view, it is important that Mr Lawes’ involvement and the extent of his instructions should be fully before the Court.   That will require the appellants to waive any privilege which Mr Lawes might otherwise be subject to so that he can file an affidavit in this regard.   This is ultimately an issue for the appellants. Nevertheless, I record Mr Powell’s advice that unless Mr Lawes’ position is fully disclosed  by him,  the  Crown  will  be asking the Court  to  infer  that  Mr Lawes’ services as counsel were available to, but were dispensed with by, the appellants at the time of the hearing before Judge Bidois.  Mr Wood responsibly accepts that this is an appropriate reservation for the Crown to record.

[21]     In terms of a timetable, much of the relevant material is now before the Court.   It  has been collated by the Crown.   There  are,  however, some matters outstanding.

a)       It is unclear from the file whether the appellants claim any particular prejudice as a result of the fact that they were not represented by a lawyer  at  the  hearing  before  Judge Bidois.    In  the  event  that  the appellants wish to assert particular prejudice, then they are required to file and serve an affidavit in that regard on or before 5:00 pm on Friday, 22 October 2010.

b)Any affidavit for Mr Lawes is to be filed and served within the same timeframe, i.e. on or before 5:00 pm on Friday, 22 October 2010.

c)        Any reply from the Crown is to be filed and served on or before

5.00 pm on 12 November 2010.

d)       Mr Powell  on  behalf  of  the  Crown  has  already filed  submissions.

They are necessarily limited because of the paucity of information

made available to date by the appellants.  I direct that the appellants are  to  file  and  serve  their  submissions  on  or  before  5:00 pm  on

27 November 2010.

e)        Any update to the Crown submissions is to be filed and served on or before 5:00 pm on 3 December 2010.

In the event that the appellants do not comply with any of these directions affecting them, then their notice of appeal is deemed to be struck out without further notice to them.

[22]     It is appropriate to order payment of Mr Powell’s disbursements in relation to today’s hearing.  It has had to be aborted through no fault of the Crown.  Mr Wood did not oppose Mr Powell’s application in this regard.

[23]     I order that the appellants are to pay the Crown’s reasonable disbursements associated with today’s hearing.  These are to cover the air travel for Mr Powell to and from Wellington and his accommodation in Rotorua overnight.  In the event of dispute,  the  same  is  to  be  fixed  by  the  Registrar.    I  record  that,  generously, Mr Powell has not sought any legal costs in respect of today’s appearance.

Wylie J