Underhill v The Queen - [2015] NZCA 116

IN THE COURT OF APPEAL OF NEW ZEALAND

CA662/2014
[2015] NZCA 116

BETWEEN	TYRONE WAYNE UNDERHILL Applicant
AND	THE QUEEN Respondent

Hearing:	13 April 2015
Court:	Stevens, Wild and Miller JJ
Counsel:	Applicant in person with his father Mr Wayne Underhill as McKenzie Friend Y Moinfar for Respondent
Judgment:	16 April 2015 at 11.30 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is dismissed.

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REASONS OF THE COURT

(Given by Wild J)

Introduction

Mr Underhill applies under the (since repealed) s 144(3) of the Summary Proceedings Act 1957 for leave to bring a second appeal to this Court in relation to a speeding infringement.
Where the High Court refuses leave to appeal to this Court, s 144(3) allows this Court to grant special leave:
… 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.
In his notice of application, Mr Underhill sets out the question he wants this Court to determine in this way:
I did not receive a reminder notice and I filed a statutory declaration that was accepted by the District Court Judge, but refused to order that the statutory declaration be enforced.

Background

This is set out in Gilbert J’s judgment declining Mr Underhill’s application for leave to bring a second appeal:[1]
[1]       This is an application for leave to appeal to the Court of Appeal in relation to a speeding infringement.
[2]       On 2 August 2012, a Mitsubishi car registered in the name of the appellant was captured on a speed camera exceeding the speed limit. An infringement notice imposing a fine of $80 was issued to the appellant. The fine was not paid and so a reminder notice was issued on 17 September 2012. No hearing was requested pursuant to s 21 of the Summary Proceedings Act 1957.
[3]       Over a year later, on 9 October 2013, the appellant filed an application under s 78B of the Act which empowers a District Court Judge or Registrar to correct irregularities in proceedings for infringement notices. The appellant’s application was based on his contention that he transferred ownership of the Mitsubishi to his father in December 2011, although the change was not registered until 13 June 2013. He claims that his father was driving at the time and he wanted the fine transferred to him. The Registrar declined the application on the basis that there was no irregularity in the procedure that had been followed and therefore no basis for the appellant’s application under s 78B.
[4]       The appellant sought a review of this decision to a District Court Judge pursuant to s 106F of the Act. The Registrar’s decision was upheld.
[5]       The appellant then appealed to this Court. The appeal was dismissed by Simon France J on the basis that there was no merit in…

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.

Continue reading Underhill v The Queen

Details

AGLC: Underhill v The Queen [2015] NZCA 116
Case: [2015] NZCA 116
Decision Date: 16 April 2015 at 11.30 am

CaseChat Overview and Summary

Tyrone Wayne Underhill applied to the Court of Appeal of New Zealand for leave to bring a second appeal against a speeding infringement conviction. The Court of Appeal dismissed the application for leave to appeal, holding that there was no jurisdiction to entertain the second appeal and that no question of general or public importance was involved in the case. The matter began with a speeding infringement issued to Mr Underhill on 2 August 2012, which was not paid, and a reminder notice was issued. Mr Underhill applied to the District Court to correct the infringement proceedings, arguing that his father, not he, was the driver at the time of the offence. The District Court declined the application, and the High Court dismissed the appeal against this decision. Mr Underhill then sought leave to bring a second appeal to the Court of Appeal. The Court of Appeal found that it had no jurisdiction to hear the appeal and that no question of law involved in the appeal was of general or public importance. The Court emphasised that the requirements for a second appeal under s 144(3) of the Summary Proceedings Act 1957 were not to be diluted. The application for leave to bring a second appeal was dismissed.

Orders