PRESCOTT v NEW ZEALAND POLICE [2020] NZCA 206

PRESCOTT v NEW ZEALAND POLICE [2020] NZCA 206 [2 June 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA115/2020[2020] NZCA 206BETWEEN PETER RICHARD PRESCOTTApplicantAND NEW ZEALAND POLICEFirst RespondentDISTRICT COURT AT AUCKLANDSecond RespondentCourt: French and Gilbert JJCounsel: Applicant in personA F Todd for First RespondentJudgment:(On the papers)2 June 2020 at 11 amJUDGMENT OF THE COURTA The application for an extension of time to appeal under r 29A of the Courtof Appeal (Civil) Rules 2005 is granted. The applicant is directed to filethe notice of appeal not later than 30 July 2020.B The applicant is directed to file and serve the case on appeal not later than30 September 2020.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Mr Prescott wishes to bring an appeal against a decision of the High Court inwhich Gault J declined his judicial review application.1 The final date for filingthe appeal was 7 February 2020. Mr Prescott did not file any documents in this Courtuntil 5 March 2020. He now seeks an extension of time to appeal under r 29A ofthe Court of Appeal (Civil) Rules 2005.[2] The application for an extension of time is opposed by the New Zealand police.In accordance with usual practice, the second respondent is not taking an active partin the proceeding.Background[3] Mr Prescott issued civil proceedings in the District Court againstthe New Zealand police alleging a number of breaches of the New Zealand Bill ofRights Act 1990. The claim arose from an incident during the course of whichMr Prescott had been arrested for obstructing a police officer and taken to a policestation where he was detained for two hours.[4] The claim came before Judge Cunningham who found the police had actedlawfully and had not breached the New Zealand Bill of Rights Act.2[5] Dissatisfied with that outcome, Mr Prescott then appealedJudge Cunningham's decision to the High Court. He also initiated judicial reviewproceedings alleging misconduct on the part of the Judge including bias, intimidation,tampering of the notes of evidence and breach of natural justice.[6] The appeal and the judicial review proceeding were heard at the same time inthe High Court. Gault J upheld Judge Cunningham's decision and dismissed1 Prescott v Police [2019] NZHC 3376.2 Prescott v Police [2016] NZDC 14357.the judicial review proceedings. He found there was no substance to the allegationsagainst Judge Cunningham.The application for an extension of time[7] In determining applications for extensions of time, the Court considers variousfactors with the ultimate question being what the interests of justice require.The relevant factors include the length of the delay, the reasons for it, the conduct ofthe parties, prejudice to the respondent, the significance of the issues, and in somelimited cases the merits of the appeal.3[8] Applying those principles to this case, the delay in filing the appeal is short.[9] There is also, in our view, a reasonable explanation for the delay. Mr Prescotthad an appeal as of right to this Court in relation to the judicial review proceeding butnot in relation to the substantive appeal. The latter required him to obtain leavebecause any appeal to this Court would be a second appeal. However, Mr Prescott,who is self-represented, mistakenly thought he needed leave in respect of bothproceedings. He therefore attempted to file a leave application in relation tothe judicial review proceedings on 4 February 2020 in the High Court.Once the mistake was drawn to his attention, he acted promptly and filed documentsin the correct Court. The initial mistake was understandable.[10] The delay has not caused any prejudice to the New Zealand police.[11] Further, there is no evidence of obstructive or delaying tactics on the part ofMr Prescott in the conduct of the litigation such as would count against an extensionof time being granted.[12] As for the significance of the issues raised by the proposed appeal, taken atface value, they would seem to be significant. However, counsel for the New Zealandpolice submits they are not significant because they are wholly unsupported bythe evidence and the entire appeal is lacking in merit. The grounds of the appeal as3 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38]–[39].currently formulated are that Gault J failed to address the District Court Judge'salleged serious acts of misconduct and failed to consider certain media reports.Counsel for the police argues that as the High Court decision demonstrates thesematters were however all addressed and decisively rejected, placing the appeal inthe "clearly hopeless" category.4[13] We acknowledge that the appeal at this preliminary stage does seems veryweak. However, in a case, where there has been an accidental slip-up in the exerciseof a right and a very short period of delay, we consider it would be wrong to makemerits the decisive consideration.[14] Having regard to all the circumstances, we are satisfied it is in the interests ofjustice to grant the application for an extension of time.Outcome[15] The application for an extension of time to appeal under r 29A of the Court ofAppeal (Civil) Rules is granted. The applicant is directed to file the notice of appealnot later than 30 July 2020.[16] The applicant is directed to file and serve the case on appeal not later than30 September 2020.Solicitors:Crown Law Office, Wellington for First Respondent4 At [39(c)].