Wilson v Wellington District Court

[2022] NZHC 2082

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV 2022-485-450

[2022] NZHC 2082

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER OF

an application for judicial review

BETWEEN

DAVID NOEL WILSON

Applicant

AND

WELLINGTON DISTRICT COURT

First Respondent

GARY DOUGLAS MANN

Second Respondent

Teleconference:

19 August 2022

Counsel:

G H Allan and H Worth for Applicant P J Gunn for First Respondent

D G Hayes for Second Respondent

Judgment:

19 August 2022

JUDGMENT OF MALLON J

[1]    The second respondent (Gary Mann) presented for filing in the District Court at Wellington a charging document charging the applicant (David Wilson) with a charge under s 220 of the Crimes Act 1961. The Registrar referred the charging document to a District Court Judge to determine whether to accept the charging document for filing. In a decision given on 23 May 2022, the Judge directed that the charging document be  accepted  for  filing  and  that  the  private  prosecution  of  Mr Wilson could proceed.

[2]    Mr Wilson is summonsed to appear in the District Court at Blenheim on     23 August 2022. He has filed a judicial review application in this Court which seeks

WILSON v WELLINGTON DISTRICT COURT [2022] NZHC 2082 [19 August 2022]

an order reversing the District Court’s decision. He says the circumstances are not capable of establishing a s 220 charge and are an abuse of process. He has applied on an urgent basis for an interim order staying the District Court proceeding until the determination of his judicial review application.1

[3]    The interim order application was filed ex parte but on a Pickwick basis. A telephone conference was convened today. Mr Gunn for the  first respondent  and  Mr Hayes for the second respondent were able to participate in the telephone conference, along with counsel for Mr Wilson. Both respondents abide the interim order application and the substantive judicial review.

[4]    I am satisfied that an interim order is necessary to preserve the position. While Mr Wilson could file a s 147 application in the District Court, judicial review is also an available avenue and has the advantage from Mr Wilson’s perspective of not having to attend the District Court pursuant to the summons or otherwise respond in that Court to a charge he says should never have been accepted for filing.

[5]    The circumstances that are alleged to give rise to the charge are complex. It arises out of a dispute between Mr Mann and Mr Wilson, or entities associated with them, over the sale of a Picton property that was the subject of a civil proceeding seeking injunctive relief against the receiver who arranged the sale process.2 Having reviewed the material filed and the judgment in the injunction proceeding, I am satisfied that Mr Wilson has at least a bona fide argument to make about whether the charge should have been accepted for filing. I am not in a position to assess the strengths of that argument at this point.

[6]    The charging document has been filed some years after the Picton property dispute and the injunction proceeding. Delay in its prosecution that would arise from granting a stay pending a judicial review determination is not unfairly prejudicial in these circumstances. This is confirmed by Mr Mann’s position that he abides the stay and judicial review applications.

1      Judicial Review Procedure Act 2016, s 15(2)(b).

2      Mann v Scutter [2020] NZHC 755.

[7]    I am therefore satisfied that an order staying the private prosecution against the applicant instituted under CRN 22085500356 until the substantive determination of the judicial review application or further order of the Court should be made. I make an order accordingly.

[8]    Counsel for Mr Wilson advises that the judicial review application can and should be dealt with promptly. He would be in a position to have the application heard in about four weeks’ time, subject to court availability. Mr Hayes has no objection to that time frame and confirms that Mr Mann will not be taking an active part. As the first respondent will be abiding also, Mr Gunn will make a proposal for a contradictor to be appointed to assist the Court. I confirmed that a contradictor should be appointed. Counsel are to liaise with the Court for a hearing date for the judicial review. Once the date is set, counsel are to liaise with a view to filing a joint memorandum for consent timetable directions and the appointment of a contradictor.

Mallon J