PRESCOTT v NEW ZEALAND POLICE [2019] NZCA 380

PRESCOTT v NEW ZEALAND POLICE [2019] NZCA 380 [22 August 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA173/2019[2019] NZCA 380BETWEEN PETER RICHARD PRESCOTTApplicantAND NEW ZEALAND POLICERespondentHearing: 12 August 2019Court: Brown, Clifford and Collins JJCounsel: Applicant in personG M Taylor for RespondentJudgment: 22 August 2019 at 2.30 pmJUDGMENT OF THE COURTA The application for extension of time to file an appeal is declined.B The application to stay execution of the costs order is declined.C The applicant is to pay one set of costs to the respondent on a band A basiswith usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Mr Prescott has filed:(a) an application to extend time to file an appeal from a judgment ofthe High Court delivered on 15 February 2019,1 striking out hisapplication for judicial review of a decision of the District Court ina criminal matter; and(b) an application to stay execution of an order for costs made against himwhen the High Court struck out his application for judicial review.2Background[2] On 20 July 2016, a speed camera recorded a vehicle being driven onTriangle Road in Massey, travelling in excess of the 50 km/h speed limit.[3] The vehicle had a "trade plate" number X7760. A trade plate is a temporaryplate that may be issued by the Registrar of Motor Vehicles pursuant to reg 25 ofthe Land Transport (Motor Vehicle Registration and Licensing) Regulations 2011.A person to whom a trade plate is issued may operate a motor vehicle even thoughthe vehicle is not registered, provided the vehicle is only used for a purpose for whichthe trade plate is issued.3 Inquiries by the Police Infringement Bureau revealed thattrade plate X7760 was issued to Peter Richard Prescott of Online Car Care, 1/14ATarget Road, Totara Vale, Auckland.[4] On 2 August 2016, the police served on Mr Prescott an infringement noticealleging he had driven the vehicle in question. Mr Prescott contested the infringementnotice and sought a hearing, which was scheduled for 27 October 2016 before twoJustices of the Peace. Although he was advised of the hearing date Mr Prescott did1 Court of Appeal (Civil) Rules 2005, r 29A.2 Rule 12(3).3 Land Transport (Motor Vehicle Registration and Licensing) Regulations 2011, reg 26.not attend the hearing. The police proceeded by way of formal proof. The Justices ofthe Peace found the offence proven and ordered Mr Prescott to pay a fine of $80 andcourt costs of $30.[5] Mr Prescott appealed to the District Court. On 21 March 2018,Judge Tremewan dismissed Mr Prescott's appeal.4 In her judgment the District CourtJudge said that the vehicle was registered in Mr Prescott's name.5[6] Mr Prescott could have sought leave to bring a second appeal under s 237 ofthe Criminal Procedure Act 2011, on the basis that his proposed appeal involveda matter of general or public importance, or that a miscarriage of justice may haveoccurred, or may occur, unless his proposed appeal was heard. Instead, Mr Prescottcommenced an application in the High Court to judicially review the District CourtJudge's decision. This strategy was designed to circumvent the need for Mr Prescottto satisfy the requirements of s 237 of the Criminal Procedure Act. The police appliedto strike out that proceeding.[7] The application to strike out the judicial proceeding was granted by Jagose Jon 15 February 2019, on the ground that the proceeding was an abuse of process.6In his decision, Jagose J also considered whether or not Mr Prescott's claim could be"repleaded" as an application for leave to bring a second appeal. The High CourtJudge appears to have been satisfied that the criteria for bringing a second appeal setout in s 237 of the Criminal Procedure Act were not established.7 A costs order wasmade against Mr Prescott, the effect of which is that he is liable to pay the police$6,943.96.[8] On 18 February 2019, Mr Prescott applied to the High Court to recall thisjudgment. That application was declined on 28 February 2019.84 Police v Prescott [2018] NZDC 5372 [DC appeal].5 At [2].6 Prescott v Police [2019] NZHC 175 [HC review] at [7].7 At [9].8 Prescott v Police HC Auckland CIV-2018-404-936, 28 February 2019.[9] On 12 March 2019, Mr Prescott attempted to file a notice of appeal in relationto the High Court decision dismissing his recall application. That document wasrejected by the Court of Appeal Registry on the grounds that the recall decision wasan interlocutory decision and leave was required before Mr Prescott could appeal thatdecision.[10] On 13 March 2019, Mr Prescott sought leave in the High Court to appealthe recall decision. He was told that leave was not required if he wished to appealthe 15 February 2019 decision striking out his application for judicial review.[11] On 17 April 2019, Mr Prescott filed in this Court a "notice of application forleave to appeal to the Court of Appeal". We treat that document as being a notice toappeal the decision striking out his judicial review proceeding. That notice of appealwas, however, required to have been filed by 15 March 2019.9 Mr Prescott is nowattempting to remedy the failure to commence an appeal within time by seekingan extension of time in which to file his notice of appeal.[12] On 16 May 2019, Mr Prescott also applied for an order staying execution ofthe costs order pending the determination of his appeal.Application for extension of time[13] In Almond v Read, the Supreme Court explained the following six factors maybe engaged when determining whether or not it is in the interests of justice to extendthe time for filing a notice of appeal:10(a) the length of the delay;(b) the reasons for the delay;(c) the conduct of the parties, and in particular the applicant;9 Court of Appeal (Civil) Rules, r 29(1)(a).10 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38]–[39].(d) any prejudice or hardship to the respondent or to others witha legitimate interest in the outcome of the proposed appeal;(e) the significance of the issues raised by the proposed appeal; and(f) in some limited cases, the merits of the proposed appeal.[14] Ms Taylor, for the respondent, properly accepts that the delay in this case is notsignificant and that the respondent will not be prejudiced if an extension of time tocommence an appeal is granted. Ms Taylor submits, however, that the reasons forthe delay and Mr Prescott's conduct count against granting an extension of time to filean appeal. She also submits that the issues raised by the proposed appeal are ofno consequence and, most significantly, that the proposed appeal is devoid of merit.[15] We agree that the length of the delay in this case is not significant and that therewould be no prejudice caused if an extension of time to appeal were granted. We arealso satisfied that the reasons for the delay and Mr Prescott's actions are attributableto him being self-represented and his lack of familiarity with the Court's processes.These factors weigh in favour of the application being granted.[16] We will refer to the significance of the issues when examining the merits ofthe proposed appeal. Mr Prescott has stated in his submissions that he was notthe driver or the registered owner of the vehicle. This assertion engages s 133 ofthe Land Transport Act 1998. Under that section, infringement proceedings ofthe kind brought against Mr Prescott may be taken against:(a) the driver of the vehicle; or(b) the registered owner of the vehicle; or(c) the person "lawfully entitled to possession of the vehicle involved inthe offence (whether jointly with any other person or not)".1111 Land Transport Act 1998, s 133(1).[17] Where proceedings are taken on the bases we have set out at [16(b) or (c)], itis presumed the defendant was the driver or person in charge of the vehicle and thatthe acts of the driver or person in charge of the vehicle were those of the defendant.12[18] Mr Prescott's application for judicial review could not succeed as it wasan abuse of process for him to attempt to overturn the judgments of the Justices ofthe Peace and Judge Tremewan, which were Courts of competent jurisdiction.13 It wasalso an abuse of process for Mr Prescott to attempt to circumvent the requirements ofa second criminal appeal by launching his application for judicial review without firstexhausting the appeal pathways in the Criminal Procedure Act. Furthermore, even ifthe application for judicial review could have been treated as an application for leavefor a second appeal, the judicial review proceeding would have been brought to an end.Thus, looking at matters in a light that is most favourable to Mr Prescott, hisapplication for judicial review was doomed to fail. The proper course was forMr Prescott to have applied for leave to bring a second appeal. Such an applicationwould have required Mr Prescott to provide evidence that he was not liable underthe provisions of s 133 of the Land Transport Act. He did not attempt to provide thatevidence in the High Court.[19] We agree with Ms Taylor that the proposed appeal has no merit as there wasno basis upon which Mr Prescott's application for judicial review could succeed.Nor does the proposed appeal engage any interest beyond those that relate toMr Prescott's personal circumstances.[20] We therefore conclude that this is one of those cases in which an extension oftime should not be granted to bring an appeal because the proposed appeal has nochance of succeeding.12 Section 133(2).13 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL); W v W [1999] 2 NZLR1 (PC); and Lai v Chamberlains [2006] NZSC 70, [2007] 2 NZLR 7.Stay of execution of costs judgment[21] Our conclusion in relation to the application for an extension of time to bringan appeal means that there is no merit to the application to stay execution of the costsorder.Result[22] The application for extension of time to file an appeal is declined.[23] The application to stay execution of the costs order is declined.[24] The applicant is to pay one set of costs on a band A basis with usualdisbursements.Solicitors:Crown Law Office, Wellington for Respondent