PRESCOTT v NEW ZEALAND POLICE [2021] NZHC 941

PRESCOTT v NEW ZEALAND POLICE [2021] NZHC 941 [30 April 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-0936[2021] NZHC 941BETWEEN PETER RICHARD PRESCOTTApplicantAND NEW ZEALAND POLICERespondentHearing: On the papersAppearances: Applicant in personG M Taylor for the respondentJudgment: 30 April 2021JUDGMENT OF JAGOSE J[Leave to appeal refusal of recall]This judgment was delivered by me on 30 April 2021 at 10.00am.Pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Crown Law, WellingtonCopy to:Applicant[1] Mr Prescott applies for leave to appeal my 12 March 2021 judgment,1 refusingto recall my 15 February 2019 judgment,2 which struck out his application for judicialreview of the District Court's dismissal of his appeal against the decision of twoJustices of the Peace he pay a fine of $80 and court costs of $30 in relation to aspeeding infringement.3Approach to applications for leave to appeal[2] Section 56(3) of the Senior Courts Act 2016 prohibits appeals of orders ordecisions on interlocutory applications in civil proceedings without this Court's leave.By 'interlocutory' is meant "for some relief ancillary to that claimed in a pleading";4here, for recall of my substantive judgment.[3] The object of requiring such leave is:5 to limit the cases which may go on appeal in the interests of finality oflitigation and the workload of the [appellate] Court while preserving theintegrity of the law and the interests of justice.The Court of Appeal recently endorsed this Court's approach to leave as a "filteringmechanism",6 noting its own approach to be similar:7 leave to appeal should only be granted where the significance orimplications 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.There is no reason for this Court's approach to be seen any differently, and it is not.8The question is if there is something justifying interlocutory appeal.1 Prescott v New Zealand Police [2021] NZHC 483.2 Prescott v New Zealand Police [2019] NZHC 175.3 Prescott v New Zealand Police [2018] NZDC 5372.4 Senior Courts Act 2016, s 4(1) definition of "interlocutory application".5 Sandle v Stewart [1982] 1 NZLR 708 (CA) at 715.6 Greendrake v District Court of New Zealand [2020] NZCA 122 at [6], citing Finewood UpholsteryLtd v Vaughan [2017] NZHC 1679 at [13].7 At [7], citing Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17]; andMeates v Taylor (1992) 5 PRNZ 524 (CA) at 526. Similarly, Fairway Holdings Ltd v McCullagh[2018] NZCA 605 at [11]–[14]; and McLaren v McLaren [2018] NZCA 570 at [3]–[5].8 Li v Chief Executive of Ministry of Business, Innovation and Employment [2018] NZHC 1171,[2018] NZAR 1134 at [21]–[22].Discussion[4] As with the unsuccessful application for recall,9 Mr Prescott's application forleave to appeal relies on the success of his second appeal, which this Court upheld onthe new ground there was no evidence of how the prosecution discharged its onus toprove beyond reasonable doubt he was the owner of the vehicle photographed by thespeed camera, making his conviction a miscarriage of justice.10[5] Mr Prescott says his application for recall was "unreasonably denied", asfailing "to follow Court of Appeal precedent" or to give grounds for doing so, and thuswas "completely irrational and arbitrary". He says I erred in fact by failing to addressthe substance of his complaint against the District Court, and in law by ordering hepay costs. He otherwise reasserts his submissions on the recall application the DistrictCourt Judge therefore acted unlawfully, unreasonably and unfairly in dismissing hisappeal, and contends my judgment is to be understood as having "evaporated" in theface of his entitlement to "be restored to the position" in which he should have beenfrom the outset.[6] Again,11 Mr Prescott misses the point his judicial review application wasdismissed as an improper collateral attack on his conviction.12 His proposed appealagainst my substantive decision was declined as being without merit.13 He was refusedleave for further appeal to the Supreme Court.14[7] Mr Prescott, in reliance on his subsequent success in this Court, then appliedto set aside the Court of Appeal's decision declining to grant him an extension of timeto appeal against my strike-out judgment. This application was denied, the Courtexplaining:15We 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 inits civil jurisdiction. As Ms Taylor for the respondent submits this Court's9 Prescott v New Zealand Police [2021] NZHC 483 at [2].10 Prescott v New Zealand Police [2020] NZHC 2191 at [26].11 Prescott v New Zealand Police [2021] NZHC 483 at [3].12 Prescott v New Zealand Police [2019] NZHC 175 at [6].13 Prescott v New Zealand Police [2019] NZCA 380 at [19]–[20].14 Prescott v New Zealand Police [2019] NZSC 133.15 Prescott v New Zealand Police [2021] NZCA 24 at [6].decision declining an extension of time to file an appeal was made on the basisthat judicial review was not an appropriate remedy and that Mr Prescott shouldhave brought his challenge to the District Court decision by way of a secondcriminal appeal. An order for costs was appropriate in the circumstances. ThisCourt's decision remains valid despite the fact that the second criminal appealbrought was ultimately successful.[8] Mr Prescott's similarly sought recall of the Supreme Court's refusal of leave toappeal the Court of Appeal's original decision also was dismissed, the Supreme Courtexplaining:16The fact that the applicant was ultimately successful on his appeal to the HighCourt does not provide a basis for recall of this Court's judgment of22 November 2019, which dealt with the procedural difficulties faced by theapplicant as a result of his erroneous choice to challenge the District Courtdecision by way of judicial review instead of by appeal. Nothing in thedecision of Lang J alters the fact that the case dealt with in this Court arosefrom the inappropriate use of the judicial review procedure by the applicant,which led to his judicial review claim being struck out and his subsequentapplication for an extension of time to appeal to the Court of Appeal beingdismissed.[9] For all the same reasons, Mr Prescott's application to recall my judgment wasdismissed. Mr Prescott now points to no arguable error of fact or law as wouldovercome his "erroneous choice" and "inappropriate use" of the judicial reviewprocedure. As the Supreme Court has made plain, the integrity of the law and theinterests of justice are unaffected. Finality of litigation is the determining factor.Result[10] The application for leave to appeal also is dismissed.—Jagose J16 Prescott v New Zealand Police [2021] NZSC 18 at [8].