Underhill v R

[2013] NZCA 466

IN THE COURT OF APPEAL OF NEW ZEALAND

CA156/2013
[2013] NZCA 466

BETWEEN	WAYNNE UNDERHILL Applicant
AND	THE QUEEN Respondent

Hearing:

26 September 2013

Court:

French, Winkelmann and Panckhurst JJ

Counsel:

No appearance for Appellant
K A L Bicknell for Respondent

Judgment:

(On the papers)

7 October 2013 at 11.00 am

JUDGMENT OF THE COURT

The application for special leave to appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

1. Mr Underhill has filed an application in this Court seeking special leave under s 144(3) of the Summary Proceedings Act 1957 to appeal against a decision of Wylie J.[1]  The leave application was allocated a hearing date of 26 September 2013.  Although Mr Underhill was advised of the hearing date, he failed to attend.  We have therefore dealt with the matter on the papers.

   [1]Underhill v New Zealand Police [2012] NZHC 3363. In a subsequent decision, Underhill v New Zealand Police [2013] NZHC 416, Wylie J declined Mr Underhill leave to appeal to this Court under s 144(2) of the Summary Proceedings Act 1957.

2. In the decision that Mr Underhill seeks to appeal, Wylie J upheld findings made by Justices of the Peace that Mr Underhill had committed various infringement offences against the Land Transport Act 1998 and associated regulations.[2]

   [2]The offences Mr Underhill was found to have committed were the following: operating a vehicle with a tyre tread less than 1.5 mm, contrary to s 40 of the Land Transport Act; operating a vehicle without current evidence of vehicle inspection, contrary to s 34(1)(b) of the Land Transport Act; and operating an unlicensed vehicle, contrary to reg 77(1)(a) of the Land Transport (Motor Vehicle Registration and Licensing) Regulations 2011.

3. This Court may only grant special leave to appeal under s 144(3) if there is a question of law that, by reason of its general or public importance or for any other reason, ought to be submitted to the Court for decision.

4. We are satisfied that the appeal proposed by Mr Underhill does not meet those criteria.  The basis of his proposed appeal is that Parliament did not have the legal authority to enact the Land Transport Act, primarily because of the New Zealand Constitution Act 1952.  There is no such Act as the New Zealand Constitution Act 1952.  But in any event, regardless of the existence or otherwise of that Act, the proposed appeal entails a challenge to parliamentary sovereignty and so cannot possibly succeed.

5. The application is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent