Zhang v Police

[2013] NZHC 1949

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-404-000828 [2013] NZHC 1949

BETWEEN  ZIXIA ZHANG Plaintiff

ANDNEW ZEALAND POLICE First Defendant

ANDDISTRICT COURT AT MANUKAU Second Defendant

Hearing:                   22 July 2013

Appearances:           F C Deliu and Z Chen for the Plaintiff

D J Perkins for the First Defendant
No appearance for the Second Defendant

Judgment:                5 August 2013

JUDGMENT OF GILBERT J

This judgment was delivered by me on 5 August 2013 at 11.00 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:

ZIXIA ZHANG v NEW ZEALAND POLICE [2013] NZHC 1949 [5 August 2013]

Introduction

[1]      On 19 October 2012, Judge F J Eivers dismissed informations laid against Mr Zhang alleging careless use of a motor vehicle and driving with excess blood alcohol.   The Judge considered that she was obliged to dismiss the informations because the summonses had not been served on Mr Zhang.   The police filed and served a notice of appeal on a question of law within time.  However, they did not file a draft case stated until two days outside the 14 day time limit.  They also did not serve  a  copy  of  the  draft  case  on  Mr  Zhang  despite  being  obliged  to  do  so “forthwith”.  Despite these irregularities, the Judge settled and signed the case stated detailing the questions of law to be determined by this Court on the appeal.

[2]      Mr Zhang applies  for judicial  review challenging the Judge’s  decision  to settle and sign the case.  He seeks an order: “quashing the exercise of power and/or decisions in question”; a “declaration that the appeal is closed”; and an order prohibiting the police from taking any further steps in relation to the appeal. Alternatively, Mr Zhang seeks an order directing the District Court to reconsider its decision to state a case after hearing from the parties.   He also seeks unspecified damages against the police under the New Zealand Bill of Rights Act 1990 for failing to serve a copy of the draft case stated on him.

Background

[3]      The police allege that at about 4.30 am on 29 January 2012, Mr Zhang was driving along Dannemora Drive in East Auckland when he crashed into a parked car, mounted the kerb and knocked over a tree before coming to rest on the front lawn of a nearby property.  Mr Zhang decamped from the crash scene but was found by the police a short time later.  A specimen of Mr Zhang’s blood was taken and found to contain 215 milligrams of alcohol per 100 millilitres of blood.

[4]      On 8 February 2012, the police sent Mr Zhang a copy of the certificate of analysis obtained from ESR and a traffic offence notice for driving with excess blood alcohol and careless use of a motor vehicle.

[5]      Informations   in   respect   of   these   alleged   offences   were   laid   on

23 February 2012 and summonses were prepared for an initial appearance in the Manukau District Court on 26 April 2012.  However, these summonses were never served on Mr Zhang.

[6]      Mr Zhang consulted Mr Deliu on 13 February 2012.   Mr Chen, a junior barrister working in Mr Deliu’s offices at the time, contacted the Howick Police Station on 26 March 2012.   The police advised him that they could not see any record of any summons having been prepared.  They said that they would call him back but did not do so.

[7]      Mr Chen again contacted the Howick Police on 23 April 2012.  He provided them with the traffic offence number, the nature of the charges and the name of the constable shown on the analyst’s certificate, and asked the police to explain why Mr Zhang  had  not  been  served  with  any  summons.  The  police  responded  that Mr Zhang was required to attend the Manukau District Court on 26 April 2012 and that a warrant for his arrest would be sought if he did not appear.  Mr Zhang duly appeared on that date but protested the jurisdiction of the Court on the basis that he had not been served with any summons.

[8]      Mr  Zhang’s  protest  to  jurisdiction  was  considered  by  Judge  Eivers  on

19 October 2012.   She considered that Mr Zhang had not been informed promptly and in detail of the nature of the charges in breach of s 24 of the New Zealand Bill of Rights Act 1990 because he had not been served with the summonses.  The Judge considered that she had no choice but to dismiss both charges in these circumstances. She stated:

I consider that there has been a breach of the Bill of Rights in that you were not served with that summons.   The effect of that is of course that these charges will be dismissed.  Although I have sympathy with the police argument, the legal authorities are such that the informations must be dismissed.1

[9]      On 31 October 2012, the police filed a notice of appeal on a question of law pursuant to s 107 of the Summary Proceedings Act 1957.   This was served on

1 At [16] of the judgment.

Mr Zhang’s solicitor.   On 16 November 2012, two days outside the 14 day period prescribed by s 107(3), the police filed a case in the prescribed from setting out the facts, the grounds of determination and the questions of law on which the appeal was made.    The  police  failed  to  serve  this  document  on  Mr  Zhang,  despite  the requirement in s 107(3) to do so “forthwith”.

[10]     On 23 November 2012, counsel for Mr Zhang contacted the Court to see whether any documents had been filed by the police.  The staff member advised that she was not aware of any documents having been filed other than the notice of appeal.

[11]     On 12 December 2012, the Judge signed the case stated having amended one of the proposed questions of law.   I set out below the questions of law with the Judge’s hand-written changes shown in italics.

3.3The  questions  for  the  opinion  of  the  Court  are  whether  it  was erroneous in point of law to hold that:

3.3.1The legal requirement of service cannot be displaced by the appearance of the defendant despite not receiving summons? And when the defendant makes a protest to jurisdiction from the outset?

3.3.2The lack of service of summons amount [sic] to a breach of s 24(a) of the New Zealand Bill of Rights Act 1993 [sic] when a defendant appears despite not receiving summons.

3.3.3    If the answer to either question one or two is “yes” then the

only available remedy is dismissal of the charges?

[12]     On 18 December 2012, unaware that the case stated had already been signed by the Judge, counsel for Mr Zhang filed a document headed “Opposition and cross motion for refusal to state in writing a case or otherwise settle, sign and transmit to the registrar”, together with an affidavit from Mr Zhang.   He sought an order dismissing the notice of appeal on the grounds that: the police had not complied with s 107(3) because they had not filed any case stated; s 204 of the Act should not be invoked to  remedy this  non-compliance;  the  Judge  should  certify pursuant  to  s

107(8) that the appeal had not been prosecuted; and the proposed appeal was frivolous.

[13]     Mr  Zhang  commenced  the  present  application  for  judicial  review  on

14 February 2013, the day before the appeal was first called in this Court.

Application for judicial review

[14]     Mr  Zhang  raises  four  grounds  in  support  of  his  application  for  judicial review:

(a)      Breach of natural justice.  This ground is advanced on the basis that the police failed to serve a copy of the draft case stated and the Judge proceeded to settle and sign the case without giving Mr Zhang the opportunity to be heard.

(b)Mistake of fact.   This ground is based on the advice given by the Court staff member that she was not aware of any documents having been filed after the notice of appeal.

(c)      Ultra vires.  Mr Zhang argues that the Judge had no power to settle and sign the case stated because it was filed outside the 14 day period and there was no application to enlarge time.

(d)Unreasonableness.  Mr Zhang argues that if the Judge did have legal power to sign the case stated, she acted unreasonably in doing so because she signed it:

(i)outside the 14 day period without receiving any application for extension of time;

(ii)without any evidence that Mr Zhang had been served with a copy of the draft case;

(iii)     without considering whether to hold a hearing; and

(iv)     without independently considering the proposed case stated.

[15]     Mr Zhang also pleaded that the Judge acted unreasonably in failing to take into account his opposition and cross-motion filed on 17 December 2012.  However, this ground of review was sensibly not pursued.   Mr Deliu accepts that the Judge could not have taken this into account when she signed the case because it had not been filed at that stage.  However, Mr Deliu maintains that this document is relevant to Mr Zhang’s other grounds of appeal.  He says that he would have filed it earlier had the draft case stated been served in accordance with s 107(3) or if he had been advised on 23 November 2012 that it had been filed.   He submits that so long as the opposition and cross-motion was filed before 12 December 2012 the Judge would have taken it into account before settling and signing the case stated.

[16]     The  second  defendant  did  not  participate  in  the  hearing  and  abides  the decision of the Court.

Breach of natural justice?

[17]     Mr Deliu submits that Mr Zhang had a right to be heard before the case stated was settled and signed by the Judge.  He argues that Mr Zhang was denied this right because:

(a)      the police failed to serve a copy of the case stated as required by s 107(3);

(b)the  Court  officer  incorrectly  advised  on  23  November  2012  that nothing other than the notice of appeal had been filed; and

(c)      the Judge proceeded to sign the case stated without requiring proof that Mr Zhang had been served with a copy of it and without convening a hearing.

[18]     The flaw in this argument is that Mr Zhang had no right to be heard on the form  and  content  of  the  case  stated.    The  case  stated  sets  out  the  question  or questions of law to be considered on appeal by this Court.   The Judge has the responsibility of settling these questions of law.  The respondent to the appeal has no

right to participate in that exercise.  The Judge may convene a hearing of the parties before settling the case and signing it but is not obliged to do so.  This is clear from s 107(4) which provides:

As soon as may be practicable after receiving the case stated, the District Court Judge or Justice or Justices shall, after hearing the parties if he or they consider it necessary to do so, settle the case, sign it, and transmit it to the Registrar.   The settling and signing of the case shall be deemed for the purposes of this Part to be the statement of the case by the court.

[19]     If Mr Deliu is correct that a respondent has a right to be heard on the form and content of the case, it would mean that the Judge would need to wait for proof of service and then consider the length of time that should be allowed to the respondent to file any opposition or make any submissions in response.  That time period would need to be communicated to the respondent. The Judge would have to delay until the expiry of that time period before proceeding to settle and sign the case.   If the respondent made submissions, it might then be necessary to give the appellant an opportunity to respond.

[20]     If this process had been intended, it is likely that time limits would have been set out in the section rather than being left for determination by the Judge in each case.   The right of the respondent to be heard would not have been left to the discretion of the Judge.   Further, there would not have been an obligation on the Judge to settle, sign and transmit the case as soon as may be practicable on or after receiving it.

[21]     Section 107(3) requires the appellant to deliver or post a copy of the case to the respondent or his solicitor “forthwith” after filing it.  In my view, the purpose of this requirement is not to facilitate a right to be heard but rather to ensure that the respondent is aware of the progress of the appeal and is ready to make submissions in the event that the Judge wishes to hear from the parties before settling and signing the case.

[22]     My conclusion that a respondent has no right to be heard on the form and content of a case stated is supported by a number of decisions of this Court.   In

Department of Labour v Ireland & Company Limited,2 Barker J held that a judge is entitled to sign the case and transmit it to the High Court under s 107(4) of the Act without  hearing  from  the  parties.     Penlington  J  reached  the  same  view  in van der Kaap v Police3stating:

The Judge is not required by statute to give the parties an opportunity to be heard.  The judicial officer alone is responsible for the settling of the case if he decides to state a case.

The same conclusion  was  reached  by Keane J  in  Police v Edwards4   and  more recently by Allan J in Police v M.5

[23]     Counsel referred me to the decision of Young J in Police v Reynolds6  in which the Judge commented in passing that a failure to consult on the form of a case stated would be a breach of the rules of natural justice.  The Judge did not give any reasons to support this observation and it was not critical to his decision.  The Judge does not refer to the earlier contrary authorities nor does it appear that he heard argument on the issue.   In any event, I prefer the reasoning set out in the other authorities to which I have referred.

[24]     For these reasons I reject the first ground of Mr Zhang’s application for review.   There was no breach of natural justice because there was no right to be heard.

Mistake of fact

[25]     Mr  Zhang  alleges  that  the  District  Court  made  a  mistake  of  fact  on

23 November 2012 when it advised him, in effect, that no case stated had been filed. Mr Deliu argues that this had the “wrongful effect” of the Judge stating the case by

12 December 2012, before Mr Zhang could request an opportunity to be heard.  In

these circumstances, he submits that the error of fact was material.

2 Department of Labour v Ireland & Company Limited HC Auckland, 3 June 1980.

3 van der Kaap v Police HC Hamilton AP 09/96, 30 April 1997 at 31.
4 Police v Edwards [2006] DCR 217 (HC) at [20].
5 Police v M [2013] NZHC 1101 at [18].

6 Police v Reynolds HC Invercargill AP 16/99, 7 September 1999.

[26]     This ground of judicial review overlaps with the previous ground and fails for the same reason.  Mr Zhang had no right to be heard on the form and content of the case stated before it was signed.

Ultra vires

[27]     Mr Zhang alleges that the Judge “lacked the legal power” to sign the case because: it was filed two days outside the 14 day period prescribed by s 107(3); no application was made to enlarge time; Mr Zhang had not been served; and the Judge did not consider whether to hear from the parties.

[28]     Although no formal application to extend the time for filing the case was made, the Judge was empowered by s 107(3) to extend the time limit for taking this step and she evidently did so.

[29]     Even if the Judge did not turn her mind to the fact to the draft case stated was filed two days out of time, the irregularity should be cured under s 204 of the Act which provides:

No summons, sentence, order, bond, warrant, or other document under this Act, and no process or proceeding under this Act shall be quashed, set aside, or held invalid by any District Court or by any other court by reason only of any  defect,  irregularity,  omission,  or  want  of  form  unless  the  court  is satisfied that there has been a miscarriage of justice.

[30]       In Rotorua District Council v O’Connell,7   Paterson J considered that s 204 could be invoked at the time of hearing the appeal to extend the time for service of the notice of appeal and the draft case stated, even though no formal application for an extension of either time limit had been made.   Henry J was also prepared retrospectively to extend the time for serving the case stated in Police v Gray,8 although he relied on s 123 of the Act which was repealed in July of this year. There, the case was filed on  7 December 1989 but  not served until 26 January 1990. Young J was also prepared to treat the failure to serve the draft case “forthwith” as

an irregularity within s 204 in Reynolds.9

7 Rotorua District Council v O’Connell HC Rotorua AP27/98, 18 June 1998.

8 Police v Gray (1991) 6 CRNZ 701 (HC).

9 Police v Reynolds, above n 6, at [28].

[31]     The fact that the case stated was filed two days late in the present case does not mean that the Judge acted ultra vires in signing it.  The Judge was entitled to extend time on her own motion.  Even if she did not turn her mind to the issue, this would not affect the validity of the case stated. To find otherwise, would be to defeat the clear legislative intent of s 204.

[32]     The failure to serve the case stated is also not fatal to the appeal, just as it was not fatal to the appeals in Police v Gray and Rotorua District Council v O’Connell. For the reasons already given, Mr Zhang had no right to be heard in relation to the form and content of the case stated.  The Judge clearly did not consider it necessary to hear from the parties before she settled and signed the case.

[33]     For these reasons, I reject Mr Zhang’s claim that the Judge acted beyond her powers in signing the case stated.   This ground of judicial review must also be dismissed.

Unreasonableness

[34]     For the same reasons advanced in support of his ultra vires claim, Mr Zhang contends that the Judge acted unreasonably in signing the case.   He adds that the Judge signed the case stated as “a rubber stamp” exercise without independently considering the proposed questions of law.   He complains that the District Court failed “to discharge its role as an independent branch of government and protector of the citizenry from tyranny by the state”.

[35]     The police were entitled to appeal on a question of law and exercised that right by filing and serving a notice of appeal within the prescribed time.  Although the police filed the case stated two days late and did not serve it, these irregularities did not  result  in  any  miscarriage  of justice  and  did  not  prejudicially affect  Mr Zhang’s rights because he had no right to be heard at that stage of the process. Mr Zhang will be entitled to exercise his right to be heard at the appeal hearing in this Court.

[36]     There is no substance in the “rubber stamp” point.  It is clear that the Judge did consider the questions before signing the case because she made a hand-written change to the first of the three questions.

[37]     Unless the Judge considered that the appeal raised no question of law or was otherwise frivolous, she was obliged to sign the case stated as soon as reasonably practicable after it was filed.  She did not have to give the parties an opportunity to be heard and clearly did not consider that it was necessary to do so in this case.  It follows that the Judge did not act unreasonably in signing the case without hearing from the parties.

[38]     For these reasons, this ground of judicial review also fails.

Result

[39]     The plaintiff’s application for judicial review is dismissed. [40]         The first defendant is entitled to costs on a 2B basis.

M A Gilbert J