PRESCOTT v NEW ZEALAND POLICE [2021] NZCA 24
The application to set aside the Court's earlier judgment and costs order is declined because the earlier decision — that judicial review was not an appropriate remedy and that the applicant had abused process by failing to pursue statutory criminal appeal avenues — was properly made and remains valid; subsequent...
Source-derived case information.
- Citation
- [2021] NZCA 24
- Parties
- Applicant: Peter Richard Prescott; Respondent: New Zealand Police
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 24 February 2021
- Procedural Posture
- Application to Set Aside Prior Court of Appeal Judgment and Costs Order; Arising From Criminal Appeal and Prior Judicial Review Proceedings / Decision on Application (declined)
- Outcome
- Application declined.
- Legal Topics
- Abuse of Process, Second Criminal Appeal, Extension of Time, Costs Orders, Void Orders / Ex Debito Justitiae
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Richard Prescott
Applicant
New Zealand Police
Respondent
Procedural Posture
Application to Set Aside Prior Court of Appeal Judgment and Costs Order; Arising From Criminal Appeal and Prior Judicial Review Proceedings / Decision on Application (declined)
Legal Issues
- 1 Whether a Court of Appeal civil order can be set aside under the doctrine of ex debito justitiae after a subsequent successful criminal appeal
- 2 Whether success in a later criminal appeal invalidates or requires setting aside an earlier decision declining judicial review or ordering costs
- 3 Whether judicial review was an appropriate remedy where criminal appeal pathways were available (abuse of process)
Ratio Decidendi
The application to set aside the Court's earlier judgment and costs order is declined because the earlier decision — that judicial review was not an appropriate remedy and that the applicant had abused process by failing to pursue statutory criminal appeal avenues — was properly made and remains valid; subsequent success in a separate criminal appeal does not entitle the applicant to overturn the Court's civil order.
Court Disposition
Application declined.
Orders
- Application declined.
- Previous orders of the Court, including the costs order, remain in force.
Full Case Text
Judgment text and source record
1 paragraphs
PRESCOTT v NEW ZEALAND POLICE [2021] NZCA 24 [24 February 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA173/2019[2021] NZCA 24BETWEEN PETER RICHARD PRESCOTTApplicantAND NEW ZEALAND POLICERespondentCourt: Brown, Clifford and Collins JJCounsel: Applicant in personG M Taylor for RespondentJudgment:(On the papers)24 February 2021 at 3.30 pmJUDGMENT OF THE COURTThe application is declined.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)[1] Mr Prescott was fined by Justices of the Peace in respect of a speedinginfringement. His appeal to the District Court was dismissed.1 His application forjudicial review of that decision was struck out in the High Court.2 On 22 August 2019this Court declined to grant him an extension of time to appeal against the judgmentof the High Court.3 He was ordered to pay one set of costs on a band A basis withusual disbursements.1 Police v Prescott [2018] NZDC 5372.2 Prescott v Police [2019] NZHC 175.3 Prescott v Police [2019] NZCA 380.[2] This Court's judgment explained that it was an abuse of process for Mr Prescottto attempt to circumvent the requirements of a second criminal appeal by bringing anapplication for judicial review without first exhausting the appeal pathways in theCriminal Procedure Act 2011. Leave to appeal to the Supreme Court was refused.4[3] Subsequently with the leave of the High Court Mr Prescott commenceda second criminal appeal in the High Court under s 237(1) of the Criminal ProcedureAct. The High Court allowed the appeal. The Court did so on the basis ofa submission made for the first time in that appeal: that is, there was no evidenceadduced to establish how the prosecution had proved the offence beyond reasonabledoubt.5[4] Mr Prescott has now filed in this Court a document described as an "applicationas a matter of right to have orders set aside under the doctrine of ex debito justitiae".[5] Citing a passage from Lord Denning's publication The Discipline of Law6 tothe effect that although a void order has no legal effect from the outset it maysometimes be necessary to have it set aside, Mr Prescott applies to set aside thisCourt's judgment of 22 August 2019. We infer that the primary objective of theapplication is to quash the order for costs in the sum of $5,798.00.[6] We do not accept that the fact that Mr Prescott was ultimately successful witha criminal appeal entitles him to seek to set aside orders of this Court made in its civiljurisdiction. As Ms Taylor for the respondent submits this Court's decision decliningan extension of time to file an appeal was made on the basis that judicial review wasnot an appropriate remedy and that Mr Prescott should have brought his challenge tothe District Court decision by way of a second criminal appeal. An order for costs wasappropriate in the circumstances. This Court's decision remains valid despite the factthat the second criminal appeal brought was ultimately successful.4 Prescott v Police [2019] NZSC 133.5 Prescott v Police [2020] NZHC 2191.6 Lord Denning The Discipline of Law (Butterworths, London, 1979) at 77.[7] Consequently Mr Prescott's current application is declined.Solicitors:Crown Law Office, Wellington for Respondent