PETER RICHARD PRESCOTT v NEW ZEALAND POLICE [2019] NZSC 133

PETER RICHARD PRESCOTT v NEW ZEALAND POLICE [2019] NZSC 133 [22 November 2019]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 97/2019[2019] NZSC 133BETWEEN PETER RICHARD PRESCOTTApplicantAND NEW ZEALAND POLICERespondentCourt: Glazebrook, O'Regan and Ellen France JJCounsel: Applicant in personG M Taylor and C N Tocher for RespondentJudgment: 22 November 2019JUDGMENT OF THE COURTA The application for leave to appeal is dismissed.B The applicant must pay costs of $2,500 to the respondent.____________________________________________________________________REASONS[1] The applicant seeks leave to appeal against a decision of the Court of Appeal1dismissing his application for an extension of time to file an appeal from a judgmentof the High Court and refusing to stay the execution of the costs order made againsthim in the High Court.2[2] The background to the case was that a vehicle with a number plate issued tothe applicant was recorded by a speed camera as exceeding the 50 km/h speed limit.31 Prescott v New Zealand Police [2019] NZCA 380 (Brown, Clifford and Collins JJ) [CA judgment].2 Prescott v New Zealand Police [2019] NZHC 175 (Jagose J) [HC judgment].3 The number plate was a "trade plate", which is a temporary plate issued under reg 25 of the LandTransport (Motor Vehicle Registration and Licensing) Regulations 2011.An infringement notice was served on the applicant, alleging that he had been thedriver of the vehicle at the relevant time. He contested this and sought a hearing.However, when the hearing commenced the applicant was not present so the hearingproceeded by way of formal proof. The Justices of the Peace found the offence provenand ordered the applicant to pay a fine of $80 and court costs of $30.[3] The applicant appealed to the District Court but the appeal was dismissed.4[4] The applicant could have applied to the High Court for leave to bring a secondappeal under s 237 of the Criminal Procedure Act 2011. In order to be successful, hewould have needed to establish that a matter of general or public importance arose orthat a miscarriage of justice occurred or may occur unless the proposed appeal washeard. But he did not follow that orthodox course. Rather, he applied to the HighCourt for judicial review of the District Court decision. The Police successfullyapplied to strike out the application for judicial review.5[5] The applicant applied to the High Court for recall of the High Court'sjudgment. That application was declined.6 The applicant attempted to file an appealto the Court of Appeal against the recall decision, but his notice of appeal was rejectedby the Court of Appeal registry. He then attempted to seek leave to appeal against therecall decision but was advised that no leave would be required if he wished to appealagainst the substantive High Court judgment. The applicant then filed an applicationfor leave to appeal against the substantive High Court judgment, which the Court ofAppeal treated as a notice of appeal, since leave was not required to appeal against adecision striking out a judicial review proceeding. However, the time for filing anappeal against the substantive High Court decision had lapsed by just over a monthprior to the date on which this document was filed, and so the applicant required anextension of time to file his appeal to the Court of Appeal.[6] In its judgment dealing with the application for an extension of time, the Courtof Appeal considered the factors set out in this Court's decision in Almond v Read.74 New Zealand Police v Prescott [2018] NZDC 5372 (Judge Tremewan).5 HC judgment, above n 2, at [10].6 Prescott v New Zealand Police HC Auckland CIV-2018-404-936, 28 February 2019.7 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38]–[39].The Court accepted that the delay in filing the appeal was not significant and did notcause prejudice to the respondent.8 However, the Court considered that the proposedappeal had no merit: there was no basis upon which the applicant's judicial reviewapplication to the High Court could have succeeded.9 It therefore refused theextension of time on the basis that the proposed appeal had no chance of succeeding.10That meant that there was no merit in the application to stay the execution of the costsorder and that was also declined.11[7] The underlying concern expressed by the applicant is that the respondent wasnot required to prove beyond reasonable doubt that he was the driver of the vehiclethat was detected by the speed camera as exceeding the speed limit. However, thatargument was addressed in the District Court judgment, with the Judge explaining theapplication of s 133 of the Land Transport Act 1998. The problem for the applicant isthat he did not appear at the hearing before the Justices of the Peace and having hadhis appeal dismissed in the District Court, he chose not to seek leave to appeal butrather attempted to challenge the decision by way of judicial review.[8] The arguments the applicant wishes to raise on appeal are not matters ofgeneral or public importance,12 but rather matters that are confined to the facts of thiscase and arise from the irregular procedure followed by the applicant in his attemptsto challenge the conviction. We are satisfied that no matter of public or generalimportance arises. We also consider that the arguments that the applicant wishes toraise to challenge the Court of Appeal's decision not to extend time have insufficientprospects of success to justify a further appeal.[9] We therefore dismiss the application for leave to appeal and award costs to therespondent of $2,500.Solicitors:Crown Law Office, Wellington for Respondent8 CA judgment, above n 1, at [15].9 At [19].10 At [20].11 At [21] and [23].12 Senior Courts Act 2016, s 74(2)(a).