Underhill v Police

[2013] NZHC 416

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-404-000276 [2013] NZHC 416

WAYNNE UNDERHILL

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         5 March 2013

Counsel:         Appellant in Person

L MacDonald for the Respondent

Judgment:      6 March 2013

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie

On 6 March 2013 at 3.00 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Distribution:

W Underhill: (address on file)

L MacDonald: [email protected]

UNDERHILL V POLICE HC AK CRI 2012-404-000276 [6 March 2013]

[1]      Mr Underhill seeks leave to appeal my judgment delivered on 12 December

2012.  In that judgment, I upheld findings made by Justices of the Peace sitting in the Auckland District Court on 24 July 2012 that Mr Underhill had committed various infringements   under   the   Land   Transport   Act   1998.      I   recorded   that   the Land Transport Act is an Act of Parliament, and that this Court has to seek to apply Acts of Parliament in the terms in which they were enacted.  I noted that, subject to express provisions to the contrary, Acts of Parliament are binding on all persons within the territory of New Zealand, both Pākehā and Māori, and observed that Mr Underhill is clearly subject to the Act and to the Land Transport (Motor Vehicle Registration and Licensing) Regulations 2011.

[2]      The question which Mr Underhill seeks leave to take to the Court of Appeal is as follows:

Do  you,  the  sworn  agents  of  the  New Zealand  Incorporated  aka  the New Zealand Government aka [NZ Govt.] established by the Constitution Act 1986 that FAILED, insist that the STATUTE LAW REVIEW Volume 16

Number 3 1995 published in accordance with English Statute [GULIELMI IV.REGIS.-9 September 1835.] BY THE OXFORD UNIVERSITY PRESS

IN ASSOCIATION  WITH  THE  STATUTE  LAW  SOCIETY  is  also  an apparent misprint, a total of “FIVE” individual entries in four publications.

The STATUTE LAW REVIEW is therefore a legal document having the force of law.

[3]      As  I understand  Mr  Underhill’s  argument,  he  is  asserting  that  the  Land Transport Act, and the regulations made pursuant to that Act are invalid, and of no force and effect, because they were passed by a Parliament, which itself is invalid. Mr Underwood acknowledges the Constitution Act 1986, but says that it failed to repeal an Act he says exists called the New Zealand Constitution Act 1952.  When I asked him whether or not there was a Constitution Act 1952, Mr Underhill replied in effect that “there must be, because it is referred to in Butterworths Law Dictionary, and in the Statute Law Review”.  He told me that he is endeavouring to obtain a copy of the 1952 Act from sources in the United Kingdom.

[4]      I have checked to see whether or not there was a New Zealand Constitution Act 1952.  I have been unable to find any such Act.  My research clerk likewise has been unable to find it; nor can the librarian at the Auckland High Court Library. There  was  a  New Zealand  Constitution  Act  1852.     It  was  repealed  by  the

Constitution Act 1986.  I suspect that any references to a 1952 Act in Butterworths

Law Directory or in the Statute Law Review are in error.

[5]      Mr Underwood’s application for leave to appeal is governed by s 144 of the

Summary Proceedings Act 1957.  It provides as follows:

144     Appeal to Court of Appeal

(1)       Either party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on any case stated for the opinion of the High Court under section 107 or against any determination of the High Court on a question of law arising in any general appeal:

provided that, if the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.

(2)       A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the High Court, or within such further time as that court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that court, and the High Court may grant leave accordingly  if  in  the  opinion  of  that  court  the  question  of  law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

(3)       Where the High Court refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the High Court or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that court, for special leave to appeal to that court, and the Court of Appeal may grant leave accordingly if in the opinion of that court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[6]      It is trite law that there must be: (a)      a question of law;

(b)the question must be one which, by reason of its general and public importance, or any other reason, ought to be submitted to the Court of Appeal; and

(c)       the Court must be of the opinion that it ought to be so submitted.[1]

[1] R v Slater [1997] 1 NZLR 211 (CA) at 215.

[7]      Neither the determination  of what  constitutes  a question  of law,  nor  the question of whether that point of law raises a question of general or public importance, are to be diluted.  Section 144 was not intended to provide a second tier of appeals from decisions of a District Court in proceedings under the Summary Proceedings Act, and Parliament intended that such proceedings should be brought to finality with a defendant having an appeal to the High Court other than when the

conditions specified in subs (2) and (3) are met and leave to appeal is granted.[2]

[2] Ibid at 215.

[8]      In my view, Mr Underhill’s application does not raise a question of law.  The issue he wishes to raise concerns both Parliament and sovereignty.   The Courts, including the Court of Appeal, have dealt with this issue under various guises on numerous occasions.  Indeed, similar arguments raised by Mr Underhill himself have previously been  rejected  by the  Court  of Appeal[3]   and  the  High Court.[4]     It  has consistently been held that Parliament can pass statutes and put in place laws that this  Court  must  strive  to  apply.    As  I  noted  in  my  substantive  decision,  a typographical error in a law dictionary, and in the Statute Law Review published by

[3] Underhill v R [2011] NZCA 301.

[4] Underhill v Chief Executive of the Department of Corrections HC Auckland CIV 2011-404-

4016, 11 July 2011.

the Oxford University Press, does not and cannot detract from that proposition.

[9]      The matters which Mr Underhill wishes to raise on any appeal do not raise an issue of law, let alone an issue of law of general or public importance warranting an appeal to the Court of Appeal.

[10]     The application is dismissed.

Wylie J