DOYLE v COMMISSIONER OF POLICE [2022] NZCA 2

DOYLE v COMMISSIONER OF POLICE [2022] NZCA 2 [31 January 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA471/2021[2022] NZCA 2BETWEEN WAYNE STEPHEN DOYLEFirst ApplicantHARATA RAEWYN PAPUNISecond ApplicantAND COMMISSIONER OF POLICERespondentCourt: Brown and Collins JJCounsel: R M Mansfield QC, S L Cogan and S R Lack for First and SecondApplicantsM R Harborow and C R Purdon for RespondentJudgment:(On the papers)31 January 2022 at 11.00 amJUDGMENT OF THE COURTA The application for leave to appeal is declined.B The respondent is entitled to one set of costs for a standard interlocutoryapplication on a band A basis with an uplift of 50 per cent and usualdisbursements.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] On 29 May 2020 the respondent, the Commissioner of Police, filed anapplication for civil forfeiture orders under the Criminal Proceeds (Recovery) Act2009 (the Act) against the applicants. In accordance with r 19.2(r) of the High CourtRules 2016 the application took the form of an originating application, supported byaffidavits. In response to a request by the applicants for particulars, the Commissionerprovided further particulars for four matters in a 22 page letter dated 8 March 2021,namely:(a) the benefits alleged to have been derived by the [applicants] and fromwhich significant criminal activity;(b) the primary facts upon which the Commissioner relies to assert thatthe [applicants] have knowingly derived that benefit from significantcriminal activity;(c) how the relevant assets are alleged to have been tainted; and(d) why the [applicants] are alleged to have effective control of therelevant assets.[2] The applicants filed an application pursuant to r 19.5A for a direction that theCommissioner file a statement of claim instead of the originating application. Thatapplication was dismissed by Brewer J who relevantly stated:1[20] I consider that the originating application, the affidavits, and the letterof 8 March 2021 together constitute sufficient particularity to communicatethe Commissioner's case to the Court and the respondents. Having regard tothe statutory emphasis on the swift and efficient conduct of forfeiture matters,I consider that no formal statement of claim is necessary. It would not,pragmatically, add anything. I am also mindful that it would risk delaying thiscomplex proceeding.[3] On 1 July 2021 Brewer J declined the applicants' application for leave unders 56(3) of the Senior Courts Act 2016 to appeal that ruling.2 The applicants now applydirectly to this Court for leave to appeal under s 56(5).1 Commissioner of Police v Doyle [2021] NZHC 1209 [High Court judgment].2 Commissioner of Police v Doyle & Papuni [2021] NZHC 1619.Principles governing appeals from interlocutory judgments[4] The considerations relevant to applications for leave to appeal frominterlocutory judgments are now well established:3(a) a high threshold exists;(b) the applicant must identify an arguable error of law or fact;(c) the alleged error should be of general or public importance warrantingdetermination or otherwise of sufficient importance to the applicant tooutweigh the lack of general of precedential value;(d) the circumstances must warrant incurring further delay; and(e) the ultimate question is whether the interests of justice are served bygranting leave.[5] This Court in Ngai Te Hapu Inc v Bay of Plenty Regional Council indicatedthat considerations similar to the principles applicable to applications under the formers 24G of the Judicature Act 1908, as explained in Meates v Taylor [Leave],4 apply toapplications under s 56(5) of the Senior Courts Act, stating:5We agree that leave to appeal should only be granted where the significanceor implications of an arguable error of fact or law, either for the particular caseor for the applicant or as a matter of precedent, warrants the further delaywhich the appeal process would involve.Analysis[6] The application for leave to appeal is advanced on two bases. First it iscontended that the intended appeal raises issues of fundamental importance for the fairoperation of the Act, namely the role of pleadings and ensuring that respondents arenot ambushed by the Commissioner in the context of applications to forfeit assets ofincreasingly significant values. It is said that if leave is granted the appeal would help3 Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].4 Meates v Taylor [Leave] (1992) 5 PRNZ 524 (CA) at 526.5 Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [16]–[17].more clearly delineate when a statement of claim should be required in such cases.Alternatively it is contended that, having regard to the apparent complexity of theCommissioner's claim and the amount at stake in the present case, a statement of claimis a more appropriate form of pleading than the prescribed originating application.[7] So far as the former proposition is concerned the starting point is r 19.2 of theHigh Court Rules which requires that applications under the Act are to be commencedby an originating application. The Act is one of a number of specific statutoryprovisions in respect of which it is apparent that the originating application procedureis envisaged to provide a speedy and inexpensive mechanism for the disposition of avariety of applications.[8] However where a proceeding has been commenced by way of originatingapplication r 19.5A permits a Judge, either by interlocutory order or on his or her owninitiative, to direct the parties to file statements of claim and defence. The approachto be taken in the exercise of that power was considered in Commissioner of Police vLi where Lang J stated:6[9] The discretion to require a statement of claim to be filed shouldonly be exercised in cases where that is both necessary and proportionatehaving regard to the nature of the proceeding.[17] The Court would only be justified in directing the Commissionerto file a statement of claim where the originating application procedure hasfailed to achieve its desired object of communicating the Commissioner's caseto the Court and the respondents. Even then the Court would need to haveregard to the issues of proportionality.[9] Mr Harborow for the Commissioner noted that the applicants had not offeredany alternative to the test as postulated in Li, nor did they engage in any substantivecriticism of the test. We agree with Mr Harborow that the discretion afforded to theCourt under r 19.5A aptly balances the natural justice rights of a respondent to haveadequate notice of the claim against him or her with the purpose of the originatingapplication procedure, namely to provide a relatively quick and inexpensivemechanism for determining proceedings brought under specific enactments. The test6 Commissioner of Police v Li [2018] NZHC 292, (2018) 24 PRNZ 268.in Li recognises that there must be a compelling and cogent reason to depart from theoriginating applicating procedure given that it is mandated by the rules for applicationsunder the Act.[10] So far as the instant case is concerned, Mr Mansfield QC for the applicantscontended that the application is both complex and novel, at least when compared tothe majority of such applications brought by the Commissioner under the Act. Notingthat the application is supported by 33 affidavits said to comprise 9,000 pages, heargued that if a fully particularised pleading is not required in this case then it isdifficult to see when such would ever be required in forfeiture applications. Hecontended that a properly particularised pleading is necessary in order to identify forthe Court and applicants how it is alleged that property or benefits were acquired bythem and how they had the requisite knowledge.[11] However Brewer J ruled that the application, together with the affidavits insupport and the detailed letter of particulars, contained sufficient particularity tocommunicate the Commissioner's case to both the Court and the applicants and that aformal statement of claim was unnecessary.7 In particular he described the affidavitof Stephen Llewellyn Peat as containing the detail, and more, that might be expectedof a statement of claim.8 He also drew attention to the affidavit of Kylie Anne Cairnswhich contains the financial analysis on which the Commissioner relies.9 Inconducting his assessment of proportionality the Judge noted the volume and detail ofthe affidavits and the particulars and the statutory emphasis on the swift and efficientconduct of forfeiture matters. He concluded that a statement of claim would not addanything while risking delaying the proceeding.10[12] We agree with the Judge's assessment. We do not discern any error of law orfact in the judgment, let alone one of such significance as to satisfy the requirement at[4(c)] above.7 High Court judgment, above n 1, at [20].8 At [12].9 At [13].10 At [20].[13] Furthermore as Mr Harborow observed it is well over a year since theapplicants signalled that they would seek a statement of claim from the Commissioner.One trial date has already been lost. The matter is currently scheduled for a four weekhearing commencing on 11 July 2022. The further delay associated with aninterlocutory appeal on the pleading issue is not justified.[14] For these reasons we do not consider that the interests of justice would beserved by granting leave to appeal.Result[15] The application for leave to appeal is declined.[16] The respondent is entitled to one set of costs for a standard interlocutoryapplication on a band A basis with an uplift of 50 per cent and usual disbursements.That uplift is directed on account of the overly long submissions of the applicants ofsome 22 pages which significantly exceeded the ten page limit prescribed by r 23(4)of the Court of Appeal (Civil) Rules 2005.Solicitors:Dominion Law, Auckland for First and Second Applicants