GREENDRAKE v THE DISTRICT COURT OF NEW ZEALAND [2020] NZCA 122

GREENDRAKE v THE DISTRICT COURT OF NEW ZEALAND [2020] NZCA 122 [28 April 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA574/2019[2020] NZCA 122BETWEEN EUGENE ANTHONY GREENDRAKEApplicantAND THE DISTRICT COURT OFNEW ZEALANDRespondentCourt: Brown and Gilbert JJCounsel: Applicant in personR W Donnelly as counsel assistingNo appearance for RespondentJudgment:(On the papers)28 April 2020 at 10.30 amJUDGMENT OF THE COURTThe application for leave to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] In a judicial review proceeding of a District Court decision Dunningham Jmade an order for joinder of an additional respondent.1 An application under s 56(3)of the Senior Courts Act 2016 (the Act) for leave to appeal from the joinder decision1 Greendrake v District Court of New Zealand [2019] NZHC 1680 (Joinder decision).was declined by the High Court.2 Leave is now sought from this Court under s 56(5)of the Act to bring an appeal against the joinder decision.Background[2] Mr Greendrake sought to file charging documents in the District Court inrelation to a private prosecution against Mr McConnochie pursuant to s 26 of theCriminal Procedure Act 2011. In a decision dated 15 October 2018 the District Courtrefused to accept those documents for filing.3[3] Mr Greendrake then commenced a proceeding for judicial review of theDistrict Court's decision declining to accept the charging documents for filing.The District Court was named as the respondent to that proceeding. It abided thedecision of the High Court and was excused from further attendance.[4] In the absence of an active respondent, Mr Donnelly was appointed as counselto assist and to act as a contradictor in order that the review proceeding could be fullyargued. Mr Donnelly raised the issue whether, being the proposed defendant to thecharges, Mr McConnochie should be joined as a respondent in the judicial reviewproceeding pursuant to s 9(1)(b) of the Judicial Review Procedure Act 2016.Dunningham J accepted that that was an appropriate course in the circumstances ofthe case.[5] The joinder decision of Dunningham J is the subject of the present applicationfor leave to appeal. Mr Donnelly was appointed as counsel assisting this Court inrelation to the proposed appeal.Relevant law[6] In Finewood Upholstery Ltd v Vaughan, to which Dunningham J referred to inthe leave decision, Fitzgerald J appropriately observed that the requirement for leaveto appeal should serve as a filtering mechanism to ensure that unmeritorious appealsof interlocutory orders, or appeals of interlocutory orders of no great significance to2 Greendrake v District Court of New Zealand [2019] NZHC 2504 (Leave decision).3 Greendrake v McConnochie DC Invercargill CRI-2018-025-1593, 15 October 2018.either the parties or more generally, do not unnecessarily delay the proceedings inwhich the orders were made.4 The following considerations were recognised asrelevant on an application for leave to appeal:(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 or 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.[7] This Court in Ngai Te Hapu Inc v Bay of Plenty Regional Council5 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],6 apply toapplications under s 56(5), stating:We 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.Discussion[8] In his application to this Court for leave Mr Greendrake identifies the relevantquestion of law in the following way:The Court of Appeal should grant the appellant leave to appeal because of thepublic (precedential) importance of a question of law whether the principlesof joinder for potentially affected parties in judicial review proceedingsdominate over the principles of criminal procedure that do not give proposedcriminal defendants rights to be heard before they are charged.4 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].5 Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291.6 Meates v Taylor (1992) 5 PRNZ 524 (CA) at 526.[9] In his written submissions in support of the application he elaborates on thenature of the question in this way:[3] On the one side of the scale there is a proposed criminal defendant(Mr McConnochie) who is potentially affected by the outcome of the ongoingjudicial review proceeding: should the proposed charges be accepted forfiling, he would have to defend himself in a criminal court. The High Courtadopts the general approach that potentially affected parties in judicialproceedings can be joined.[4] On the other side of the scale, the criminal law explicitly does notgrant such proposed defendants any rights to defend themselves beforecharges are laid: granting such rights is generally seen inconsistent with theoverall statutory scheme and the procedures spelled out within s 26 [of theAct].[5] The question for the Court of Appeal is to balance the two sides of thescale and determine whether, in general, the criminal justice system should bedisrupted by allowing proposed criminal defendants to defend themselves inCivil (Judicial Review) proceedings just because they are potentially affectedby the prospects of having to defend themselves in a criminal court.[10] Mr Greendrake explains that the appeal is sought in the interests of all membersof the public who may have to seek justice by way of private prosecution in order tomake it clear that, barring exceptional circumstances, there is no place for proposedcriminal defendants in the review of refusal to accept charges under s 26 of theCriminal Procedure Act. He submits that the appeal is sought in the interests of justiceto preserve the integrity of the criminal justice system by allowing criminal defendantsto defend themselves only within the criminal procedure.[11] In response to the submissions of Mr Donnelly, Mr Greendrake contends thatthe interests of a proposed defendant can and should be protected in the course ofcriminal procedure such as by applying to dismiss the charges under s 147 of theCriminal Procedure Act. However, he described the protection of proposeddefendants' interests in the course of judicial review as a perversion of criminal justicewarranting this Court's review of the joinder decision.Discussion[12] We agree with Mr Donnelly's submission that Mr Greendrake's argumentconflates the issue of a proposed defendant's right to be heard in the District Courtwith that person's standing as a respondent in judicial review proceedings in theHigh Court. We accept that it is not necessary for respondents to have had input intothe decision, the subject of an application for review, for them to be properly namedas respondents in the review proceedings.[13] Mr Donnelly submits that the principles relating to the appropriateness orotherwise of joining parties to judicial review proceedings are well settled. We acceptthat contention and we agree that the joinder decision involved the application of thosesettled principles to the specific facts of the present case.[14] We observe that, although the formulation of the question of law at [8] abovemight suggest otherwise, in fact Mr Greendrake does not appear to advocate anabsolute prohibition on a proposed defendant to criminal charges being joined as arespondent in a review of the decision under s 26. In referring in the quoted extract in[9] above to the exercise of balancing the two sides of the scale, he introduces into theformulation of the question the qualification "in general". Subsequently he makesreference to an exceptional circumstances exception. Significantly he explains that, ifleave is granted, the judgment he seeks would be a declaration that proposeddefendants in private prosecutions "should not necessarily" be allowed to participatein the review of a refusal to accept charges for filing. In short, the proposition whichhe advocates is case-dependent.[15] We do not consider that the present application raises an issue of precedentwhich warrants the grant of leave for an appeal to this court. The appropriateness ofthe participation of a person as a respondent in a judicial review proceeding will becase specific. It is essentially a matter of case management. An order of the naturemade in this case can have no implications of substance for Mr Greendrake.[16] The powers of a judge to make orders and directions for the appropriatemanagement of judicial review proceedings are broad.7 We do not consider that it isseriously arguable that the joinder decision in this case was wrong. In our view thedelay which would be occasioned by an appeal on the issue of joinder is unjustified.The high threshold which applies to appeals from interlocutory decisions is notcrossed here.7 See s 14(2) of the Judicial Review Procedure Act 2016.Result[17] The application for leave to appeal is declined.