Walker v Nelson District Court

[2018] NZHC 1967

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2018-442-4

[2018] NZHC 1967

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER OF

an application for review of a decision of the District Court

BETWEEN

JENNY LYN WALKER

Applicant

AND

NELSON DISTRICT COURT

First Respondent

AND

NELSON CITY COUNCIL

Second Respondent

Hearing:

2 August 2018

Appearances:

J L Walker, Applicant in person

K E Mitchell for the Second Respondent

Judgment:

2 August 2018

JUDGMENT OF COOKE J

[1]    On 24 March 2017 the applicant, Ms Walker was convicted of a charge of owning a dog that had attacked a person under s 57(2) of the Dog Control Act 1996 (the Act).1 The Judge imposed a $550 fine, ordered the applicant to pay $500 in emotional harm reparations to the victim of her dog’s attack, and ordered the dog be destroyed pursuant to s 57(3) of the Act.2 Ms Walker’s principal defence at the hearing centred on the absence of fault defence, available at common law for strict liability offences, which the Judge held had not been satisfied.

1      Nelson City Council v Walker [2017] NZDC 7141.

2      Nelson City Council v Walker [2017] NZDC 6372.

WALKER v NELSON DISTRICT COURT [2018] NZHC 1967 [2 August 2018]

[2]    Ms Walker appealed to the High Court. The appeal focused on the total absence of fault defence, whether there is jurisdiction to order destruction of the dog if it was made out, and whether there were exceptional circumstances such that the destruction order was not warranted. In a judgment dated 13 April 2017 the Court held that the District Court had appropriately interpreted and applied the relevant provision, such that the conviction appeal was dismissed.3 The Court further held that there were no exceptional circumstances that would lead to the destruction order not being made so that the dog (ZiaZia) should be destroyed. The appeal was dismissed.

[3]    Ms Walker sought leave to appeal to the Court of Appeal, which by judgment dated 17 November 2017 declined to give leave.4 The Court rejected the arguments made to it and held there was no miscarriage of justice, or matter of general or public importance.5 Ms Walker was legally represented in the application for leave to appeal. Her previous appearances had been in person.

[4]    On 27 November 2017 Ms Walker attempted to apply for leave to appeal to the Supreme Court. The Supreme Court did not accept the application on the basis of lack of jurisdiction. ZiaZia was euthanised on 8 December 2017.

[5]    On 22 December 2017 these judicial  review  proceedings  were  filed  by  Ms Walker against the District Court and the Nelson City Council. In them Ms Walker contends that the courts had misinterpreted the section as a strict liability offence, and that there was no evidence of want of reasonable care. She seeks declarations setting aside her conviction, setting aside the order for destruction, and a declaration that the second respondent acted prematurely in breach of s 27 of the New Zealand Bill of Rights Act 1990.

[6]    By application dated 22 March 2018 the second respondent seeks to strike out the statement of claim, including on the basis that the issues raised in the proceedings have already been heard and determined, and accordingly they are an abuse of process.

3      Walker v Nelson City Council [2017] NZHC 750.

4      Walker v Nelson City Council [2017] NZCA 526.

5 At [14].

The first respondent, the District Court, has been given leave to be excused from appearances in the proceeding.

Decision on application

[7]    Both the second respondent and Ms Walker filed written submissions addressing all issues emerging from the proceeding. In oral argument Ms Walker advanced detailed submissions directed to the correctness of the categorisation of the offence as strict liability and associated points. It is clear that considerable legal analysis had been engaged in preparing her submissions. She appeared with a support person, Mr Simpson, who also gave her considerable assistance during the hearing.

[8]    The case nevertheless turns on one very clear legal principle. Ms Walker emphasised the importance of the judicial review function exercised by the Court. But there is another overriding point of principle that determines the application. When a court finally determines a matter between parties, what is determines operates as a res judicata – meaning that it has conclusively determined the question as between those parties, and the parties cannot reopen that issue. To seek to relitigate that issue in another proceeding is an abuse of process.6 The key principle has been described in the following terms by the Supreme Court:7

The principle of finality in litigation gives rise to a rule of law that makes conclusive final determinations reached in the judicial process:

“Unless a judgment of a Court is set aside on further appeal or otherwise set aside or amended according to law, it is conclusive as to the legal consequences it decides.”

The rule reflects both the public interest in there being an end to litigation and the private interest of parties to court processes in not being subjected by their opponents to vexatious relitigation. …

[9]    This is particularly so in relation to proceedings in relation to offending that have been conclusively determined by the established court processes. Judicial review proceedings cannot be utilised as a collateral attack on such proceedings, especially after the proceedings have been finally determined.8

6      See Dotcom v District Court at North Shore [2017] NZHC 3158 at [25]–[26].

7      Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94; [2013] 1 NZLR 804 at [28] (footnote omitted).

8      See S v New Zealand Police [2017] NZHC 1060 at [29]–[32].

[10]   Here there was established judicial procedure for dealing with the issues that were in dispute. Under that procedure Ms Walker had a hearing in the District Court, and an appeal to the High Court. She received careful consideration of her case, and detailed written reasons in the judgments of those courts. She then applied for special leave to go to the Court of Appeal, and the Court of Appeal addressed what she sought to raise in that Court in a reasoned decision. She cannot now seek to reopen all the issues that have been conclusively determined by filing fresh proceedings in the High Court, and starting all over again.

[11]   Ms Walker has no answer to this key point. She sought to respond to it by saying that she only now properly appreciates the full legal difficulties with the analysis that had led to her conviction, that they had not properly been explored in the first proceeding, that her lawyer in the Court of Appeal had not properly pursued them (including because of the lack of legal aid funding to develop such arguments) and that it was the critical function of the Court to correct fundamental errors when they occur. She said that the errors in her case were applicable to many other people, not just her, and she emphasised her rights under the New Zealand Bill of Rights Act, including under s 27.

[12]   These matters do not create an exception to the principle described above. Res judicata operates even if the arguments could have been made better the first time around. Indeed it operates with respect not only to all arguments that were made, but also all arguments that could have been made with respect to the legal question in issue in the first proceeding.9

[13]   At the heart of Ms Walker’s case was her point that it is the function of the Court to ensure that the law is correctly interpreted and applied. But res judicata forms part of the law. This Court is obliged to apply it in this case.

[14]   It also follows that it would not be appropriate for me to address the detailed submissions on the substantive questions that Ms Walker addressed (and Ms Mitchell addressed in her written submissions). It would be an abuse of process to engage in that re-litigation exercise.

9      See Beattie v Premier Events Group Ltd [2014] NZCA 184, [2015] NZAR 1413 at [43]–[46].

[15]Accordingly the proceeding is an abuse of process and must be struck out.

Costs

[16]   The second defendant sought costs, including on an indemnity basis on the grounds set out in Bradbury v Westpac Banking Corporation.10

[17]   I am not prepared to grant the Council indemnity costs on this occasion. It is clear that Ms Walker is of the view that a fundamental issues of principle arose, and she may not have fully appreciated the difficulties with her arguments. Ms Walker will need to understand, however, that if she continues to pursue the re-opening of these issues she is at risk of the higher costs awards that arise when parties pursue unmeritorious arguments.

[18]   In the present circumstances I simply award costs to the Council on a 2B basis, which are to be fixed by the Registrar if they cannot be agreed between the parties. When making its claim for costs, counsel for the Council should provide an explanation to Ms Walker setting out how costs on a 2B basis are calculated under the High Court Rules so that she can understand the position.

Cooke J

Solicitors:

Crown Law for the First Respondent

Tasman Law Limited for the Second Respondent

10     Bradbury v Westpac Banking Corporation [2009] NZCA 234, [2009] 3 NZLR 400.