COMMISSIONER OF POLICE v GONG [2020] NZHC 1667

COMMISSIONER OF POLICE v GONG [2020] NZHC 1667 [10 July 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-0454[2020] NZHC 1667UNDER the Criminal Proceeds (Recovery) Act 2009BETWEEN COMMISSIONER OF POLICEApplicantAND XIAOHUA GONGRespondentHearing: 10 July 2020Appearances: M R Harborow and H E Macdonald for the CommissionerDPH Jones QC and G P Aspell for Mr GongDate of judgment: 10 July 2020JUDGMENT OF JAGOSE J[Leave to appeal]This judgment was delivered by me on 10 July 2020 at 4.00pm.Pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarCounsel/Solicitors:DPH Jones QC, AucklandMeredith Connell, Auckland[1] Following my 25 October 2019 interim judgment,1 my 19 December 2019judgment granted the Commissioner's interlocutory application for particulardiscovery under r 8.20 of the High Court Rules 2016.2[2] Mr Gong now seeks leave to appeal against my decisions on theCommissioner's interlocutory application. Pending determination of leave and anysubsequent appeal, by consent, my orders have been stayed.3Approach to applications for leave to appeal[3] Section 56(3) of the Senior Courts Act 2016 prohibits appeals of orders ordecisions on interlocutory applications in civil proceedings without this Court's leave.The object of requiring such leave is:4 to limit the cases which may go on appeal in the interests of finality oflitigation and the workload of the [appellate] Court, while preserving theintegrity of the law and the interests of justice.[4] The Court of Appeal recently endorsed this Court's approach to leave as a"filtering mechanism",5 noting its own approach to be similar:6 leave to appeal should only be granted where the significance orimplications 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.There is no reason for this Court's approach to be seen any differently, and it is not.7The question is if there is something justifying intermediate appeal.1 Commissioner of Police v Gong [2019] NZHC 2735 ("interim judgment").2 Commissioner of Police v Gong [2019] NZHC 3441 ("final judgment").3 Commissioner of Police v Gong CIV 2017-404-0454, 18 February 2020 (minute).4 Sandle v Stewart [1982] 1 NZLR 708 (CA) at 715.5 Greendrake v District Court of New Zealand [2020] NZCA 122 at [6], citing Finewood UpholsteryLtd v Vaughan [2017] NZHC 1679 at [13].6 At [7], citing Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17]; andMeates v Taylor (1992) 5 PRNZ 524 (CA) at 526. Similarly, Fairway Holdings Ltd v McCullagh[2018] NZCA 605 at [11]–[14]; and McLaren v McLaren [2018] NZCA 570 at [3]–[5].7 Li v Chief Executive of Ministry of Business Innovation and Employment [2018] NZHC 1171,[2018] NZAR 1134 at [21]–[22].Discussion[5] For Mr Gong, David Jones QC argues leave should be granted to enableintermediate appeal against my erring interpretation and application of r 8.20 – as"inapt for proceedings taken under the Criminal Proceeds (Recovery) Act 2009", and"unusual[ly]" deployed here to obtain documents not ordinarily discoverable in theproceeding – requiring Mr Gong's discovery of documents in unreasonable andoppressive scope.[6] As I said to counsel at the outset of the hearing, I was not enthusiastic abouteither the first or last grounds justifying intermediate appeal but, in my preliminaryview, the novelty of the Commissioner's reliance on pre-commencement discovery asnecessary for 'formulation' of his claim – required by the statute to be commenced byhighly-specified originating application and supporting affidavit8 – may cross thatthreshold.[7] For the Commissioner, Hannah Macdonald endorsed my lack of enthusiasm,and additionally argued there was nothing in pre-commencement discovery'scontended 'novelty' here to justify prior or separate appeal, all of which was capableof determination in a single appeal after this Court's substantive decision. Citing RadioWorks Ltd v Commissioner of Inland Revenue,9 any precedential value was as availableon substantive appeal. In contemplating the justice of Mr Gong being required in themeantime to make pre-commencement discovery as I ordered, I should not disregardMr Gong had offered to provide the information sought when interviewed in NewZealand, but then failed to do so and now resists its availability,10 in continuance ofthe pattern of his engagements with the Commissioner.[8] In response to my query of the knock-on consequences for trial determinationson the Commissioner's pleading and admissible evidence, if pre-commencementdiscovery was held on substantive appeal not to be available, Ms Macdonald suggestedthe 2009 Act's ss 93 and 94 illustrated a muscular legislative expectation proceedingsshould continue until any challenges to the Commissioner's powers were determined,8 Interim judgment at [19]–[20] and [22]; final judgment at [5].9 Radio Works Ltd v Commissioner of Inland Revenue (2011) 25 NZTC 20-014 (HC) at [15].10 Ginivan v Southern Response Earthquake Services Ltd [2020] NZHC 1469 at [50].and even then s 93(4) anticipated use of information improperly obtained remainedavailable if not unfair. She added the Court of Appeal exercised "particular restraint inrelation to appeals from case management decisions, including in relation todiscovery".11[9] I agree with Mr Jones ss 93 and 94 should not be taken more widely than theirexpress application to the Commissioner's powers and duties under the Act. But themuscularity of the Act's procedures is relevant and, as I have noted,12 the appellateCourt's workload also is material. Nothing in my contended errors under r 8.20, or myorders' impact on Mr Gong, together or alone qualifies to justify intermediate appeal.[10] On balance, I also should not be diverted by the appeal's prospectivelyinteresting questions about:(a) use of pre-commencement discovery's usually surgical application;(b) enabling the comprehensive pleading and evidence required by the Act;(c) commencing claims to civil forfeiture by originating application;(d) in which discovery is exceptional.13It is unclear what now may be served by granting leave to appeal my decisions on theCommissioner's interlocutory application. If there are substantive consequences, thatis open to being addressed on substantive appeal. Without substantive consequencesfor the case, Mr Gong, or as a matter of precedent, leave should not be granted.[11] If I refuse leave, the Court of Appeal nonetheless may grant it.14 Even if leaveagain is refused, "nothing prevents any point raised in the application for leave toappeal from being raised in an appeal against the substantive High Court decision".1511 James Hardie New Zealand Ltd v White [2020] NZCA 142 at [55].12 At [3] above.13 Fisk v X [2014] NZHC 2797 at [18]–[19], citing Groves v TSSN Ltd (in Liq) [2012] NZHC 2402,[2013] 1 NZLR 111 at [25], and Hong Kong v Shanghai Banking Corporation v Erceg (2010) 20PRNZ 652 (HC).14 Senior Courts Act 2016, s 56(5).15 Section 56(6).Granting leave now permits pointless additional effort and expense on intermediateappeal.Result[12] Mr Gong's applications dated 25 November 2019 and 10 February 2020 forleave to appeal my interim and final judgments are dismissed.Costs[13] In my preliminary view, as the successful party, the Commissioner is entitledto 2B costs and disbursements for steps taken in opposing the applications, as theywere of average complexity occupying a normal amount of time (so far as I can tell).[14] If that is not accepted by the parties, or they cannot otherwise agree, I reservecosts for determination on short memoranda of no more than five pages – annexing asingle-page table setting out any contended allowable steps, time allocation, and dailyrecovery rate – to be filed and served by the Commissioner within ten working daysof the date of this judgment, with any response and reply respectively to be filed withinfive working day intervals after service.—Jagose J