PRESCOTT v NEW ZEALAND POLICE [2021] NZHC 483
The recall application is dismissed because the applicant improperly used judicial review as a collateral attack on his conviction and his subsequent success on a criminal appeal does not provide a basis to recall the High Court's earlier civil judgment; the prior decisions remain valid and the strike‑out was correct.
Source-derived case information.
- Citation
- [2021] NZHC 483
- Parties
- Applicant: Peter Richard Prescott; Respondent: New Zealand Police
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 12 March 2021
- Procedural Posture
- Judicial Review / Recall Application / Application to Recall High Court Judgment
- Outcome
- Application to recall the High Court judgment dismissed.
- Legal Topics
- Judicial Review, Appeal, Collateral Attack on Conviction, Recall of Judgment, Miscarriage of Justice
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Richard Prescott
Applicant
New Zealand Police
Respondent
Procedural Posture
Judicial Review / Recall Application / Application to Recall High Court Judgment
Legal Issues
- 1 Whether the High Court should recall its strike‑out judgment
- 2 Whether subsequent success in a criminal appeal justifies recalling prior civil judgments
- 3 Whether judicial review was an improper collateral attack on a criminal conviction
Ratio Decidendi
The recall application is dismissed because the applicant improperly used judicial review as a collateral attack on his conviction and his subsequent success on a criminal appeal does not provide a basis to recall the High Court's earlier civil judgment; the prior decisions remain valid and the strike‑out was correct.
Court Disposition
Application to recall the High Court judgment dismissed.
Orders
- Application to recall judgment dismissed.
Full Case Text
Judgment text and source record
1 paragraphs
PRESCOTT v NEW ZEALAND POLICE [2021] NZHC 483 [12 March 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-0936[2021] NZHC 483BETWEEN PETER RICHARD PRESCOTTApplicantAND NEW ZEALAND POLICERespondentHearing: On the papersAppearances: Applicant in personG M Taylor for the respondentJudgment: 12 March 2021JUDGMENT OF JAGOSE JThis judgment was delivered by me on 12 March 2021 at 2.00pm.Pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Crown Law, WellingtonCopy to:Applicant[1] Mr Prescott applies to recall my 15 February 2019 judgment,1 striking out hisapplication for judicial review of the District Court's dismissal of his appeal against thedecision of two Justices of the Peace he pay a fine of $80 and court costs of $30 in relation toa speeding infringement.2[2] The recall application relies on the success of Mr Prescott's second appeal, which thisCourt upheld on the new ground there was no evidence of how the prosecution discharged itsonus to prove beyond reasonable doubt he was the owner of the vehicle photographed by thespeed camera, making his conviction a miscarriage of justice.3 In detailed written submissions,Mr Prescott reasserts the District Court Judge therefore acted unlawfully, unreasonably andunfairly in dismissing his appeal, but also contends my judgment is to be understood as having"evaporated" in the face of his entitlement to "be restored to the position" in which he shouldhave been from the outset.[3] Mr Prescott misses the point his judicial review application was dismissed as animproper collateral attack on his conviction.4 His proposed appeal against my decision wasdeclined as being without merit.5 He was refused leave for further appeal to the SupremeCourt.6[4] Mr Prescott, in reliance on his subsequent success in this Court, then applied to setaside the Court of Appeal's decision declining to grant him an extension of time to appealagainst my strike-out judgment. This application was denied, the Court explaining:7We 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'sdecision 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.1 Prescott v New Zealand Police [2019] NZHC 175.2 Prescott v New Zealand Police [2018] NZDC 5372.3 Prescott v New Zealand Police [2020] NZHC 2191 at [26].4 Prescott v New Zealand Police [2019] NZHC 175 at [6].5 Prescott v New Zealand Police [2019] NZCA 380 at [19]–[20].6 Prescott v New Zealand Police [2019] NZSC 133.7 Prescott v New Zealand Police [2021] NZCA 24 at [6].[5] Mr Prescott's similarly sought recall of the Supreme Court's refusal of leave to appealthe Court of Appeal's original decision also was dismissed, the Supreme Court explaining:8The 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.[6] For all the same reasons, Mr Prescott's application to recall my judgment is dismissed.—Jagose J8 Prescott v New Zealand Police [2021] NZSC 18 at [8].