Underhill v Police - [2014] NZHC 2270

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-419-70 [2014] NZHC 2270

BETWEEN
WAYNE UNDERHILL

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 18 September 2014 (by telephone)

Counsel:

Appellant in Person
J E Tarrant for Respondent

Judgment:

18 September 2014

JUDGMENT OF GODDARD J

This judgment was delivered by me on 18 September 2014 at 12.00 pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor’s Office, Hamilton

UNDERHILL v NEW ZEALAND POLICE [2014] NZHC 2270 [18 September 2014]

[1] Mr Underhill seeks leave to appeal to the Court of Appeal from my judgment delivered in the High Court at Hamilton on 1 July 2014.1

[2] The proceedings in respect of this appeal were commenced before 1 July

2013. Accordingly, s 144 of the Summary Proceedings Act 1957 applies.

[3] For the High Court to grant leave to appeal to the Court of Appeal, 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.

[4] Counsel for the respondent, Ms Tarrant, argued that Mr Underhill’s application does not raise a question of law; nor any issue of law of general or public importance warranting an appeal to the Court of Appeal.

[5] In my judgment dismissing the appellant’s appeal in the High Court, I

observed:

[5] Plainly, the case advanced by the appellant is utterly without merit and I do not deem it necessary to outline once again why his challenge to Parliamentary sovereignty cannot succeed. As stated by Wylie J in Underhill v Police, it is an abuse of process for Mr Underhill to continue to make the same argument in the certain knowledge that it must fail.2 I further note that the appellant was told likewise by the Court of Appeal in a decision released on 9 June 2014.3 It is worth repeating those words:4

Although Mr Underhill may very well be sincere in his beliefs and genuine in his efforts to address what he considers to be an important issue, he has now taken up court resources to advance an argument that has been considered and rejected at least twice before. Arguments such as this, which Mr Underhill knows will fail, are an abuse of the court process and a waste of court resources.

1      Underhill v New Zealand Police [2014] NZHC 1494.
2      Underhill v Police [2012] NZHC 3363 at [14].
3      Underhill v R [2014] NZCA 228.
4 At [12].

[6] The issues Mr Underhill raises concern both Parliament and sovereignty. The Courts, including the Court of Appeal, have dealt with this issue in various respects on a number of occasions.

[7] The specific argument Mr Underhill raised in the High Court before me and in respect of which he now seeks leave to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZHC 2270
Decision Date: 18 September 2014

CaseChat Overview and Summary

In Underhill v Police, Wayne Underhill sought leave to appeal to the Court of Appeal from a decision made by Goddard J in the High Court at Hamilton on July 1, 2014. Underhill had commenced the proceedings before July 1, 2013, making section 144 of the Summary Proceedings Act 1957 applicable. The High Court was required to determine whether Underhill's application for leave to appeal raised a question of law and whether it was of general or public importance. The respondent, represented by Ms Tarrant, argued that Underhill's application did not raise a question of law and that it was not of general or public importance. Goddard J dismissed Underhill's appeal, noting that the case was without merit and that Underhill's challenge to parliamentary sovereignty had already been rejected by the High Court and the Court of Appeal.

Goddard J further explained that Underhill's specific argument, which had already been rejected by both the High Court and the Court of Appeal, was that there was no such Act as the New Zealand Constitution Act 1952. However, regardless of the existence or otherwise of that Act, the proposed appeal entailed a challenge to parliamentary sovereignty and could not possibly succeed. The Court of Appeal had already held that Underhill's challenge to parliamentary sovereignty could not succeed. Goddard J accepted Ms Tarrant's submission that Underhill's application did not raise a question of law or any issue of law of general or public importance warranting an appeal to the Court of Appeal. Therefore, the application for leave to appeal to the Court of Appeal was refused.

Orders