PRESCOTT v NEW ZEALAND POLICE [2021] NZCA 496

PRESCOTT v NEW ZEALAND POLICE [2021] NZCA 496 [29 September 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA360/2020[2021] NZCA 496BETWEEN PETER RICHARD PRESCOTTApplicantAND NEW ZEALAND POLICERespondentCourt: Miller and Collins JJCounsel: Applicant in personM J Hodge and A-R C Davies for RespondentJudgment:(On the papers)29 September 2021 at 9.30 amJUDGMENT OF THE COURTA The application to recall this Court's leave judgment is declined.B The respondent is entitled to costs for a standard application on a band Abasis with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] On 13 July 2021, this Court declined Mr Prescott's application for leave tobring a second appeal.1 That judgment was sealed on 27 July 2021. Two days laterMr Prescott applied to have this Court recall its leave judgment.1 Prescott v New Zealand Police [2021] NZCA 315 (Court of Appeal leave judgment).Background[2] We explained the background in our leave judgment. In summary:(a) Mr Prescott was arrested and charged on 18 May 2011 with obstructinga constable in the execution of his duty when he refused to allow theconstable to examine from inside Mr Prescott's car, the warrant offitness (the WOF) affixed to the windscreen of his car.(b) It transpired the WOF was valid. The obstruction charge waswithdrawn on 4 October 2011. Mr Prescott commenced a civilproceeding against the police in the District Court, alleging he had beenarbitrarily arrested and denied his right to consult a lawyer.(c) On 10 August 2016, the District Court dismissed Mr Prescott's civilproceeding.2 He then brought an appeal and application for judicialreview in the High Court, both of which were dismissed by Gault J on18 December 2019.3(d) Mr Prescott's application for leave to appeal to this Court from thejudgment of the High Court was dismissed by the High Court on 11June 2020, on the basis that the question of law raised by the proposedappeal was not sufficiently arguable and important to outweigh thecosts and delay of a further appeal.4(e) Mr Prescott's appeal from the High Court's judicial review decisionwas deemed abandoned pursuant to r 43 of the Court of Appeal (Civil)Rules 2005 (the Rules).(f) In declining Mr Prescott's application for leave to bring a secondappeal, this Court agreed with the High Court that the public and privateinterests engaged by the proposed appeal did not outweigh the cost and2 Prescott v New Zealand Police [2016] NZDC 14357.3 Prescott v New Zealand Police [2019] NZHC 3376.4 Prescott v New Zealand Police [2020] NZHC 1304 (High Court leave judgment).delay of a further appeal.5 In reaching that decision this Court notedMr Prescott's counsel had focused in his submissions on factual issuesrather than the proposed question of law.6Grounds for a recall application[3] The recall application relies on r 8A of the Rules, which states:8A Recalling or reopening judgment(1) The Court may, on an interlocutory application or on its own initiative,recall or reopen a judgment given in writing or orally, at any timebefore a formal record of it is drawn up and sealed.(2) Neither the parties nor their representatives have a right to appearbefore the Court on an application for a judgment to be recalled orreopened, unless the Court otherwise directs.[4] The grounds for recalling or reopening a judgment are well established. InHorowhenua County v Nash (No 2), it was explained:7Generally speaking, a judgment once delivered must stand for better or worsesubject, of course, to appeal. Were it otherwise there would be greatinconvenience and uncertainty. There are, I think, three categories of cases inwhich a judgment not perfected may be recalled — first, where since thehearing there has been an amendment to a relevant statute or regulation or anew judicial decision of relevance and high authority; secondly, where counselhave failed to direct the Court's attention to a legislative provision orauthoritative decision of plain relevance; and thirdly, where for some othervery special reason justice requires that the judgment be recalled.[5] The application for recall has been advanced by Mr Prescott on two grounds:(a) The acknowledgement by the Crown and the High Court whendeclining leave to appeal that the proposed appeal raised a question oflaw that was capable of bona fide argument.5 Court of Appeal leave judgment, above n 1.6 At [16].7 Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633, applied in Saxmere Co Ltd vWool Board Disestablishment Co Ltd [2009] NZSC 122, [2010] 1 NZLR 76; Rainbow Corp Ltd vRyde Holdings Ltd (1992) 5 PRNZ 493 (CA); Unison Networks Ltd v Commerce Commission[2007] NZCA 49; and Erwood v Glasgow Harley [2007] NZCA 88, (2007) 18 PRNZ 336.(b) If Mr Prescott's counsel erred when submitting that leave should begranted to enable a second appeal to be pursued, then Mr Prescottshould not be punished because of his counsel's error. Consistent withthis argument, Mr Prescott also applies to us for a direction thatMr Prescott's counsel resubmit to us amended submissions "clearlydetailing the error of law his client is appealing against".Analysis[6] As this Court's leave judgment has been sealed, the recall application does notfit within the requirements of r 8(1) of the Rules.[7] In any event, none of the very strict criteria that justify this Court recalling oneof its judgments is satisfied in this case.[8] In particular, there is no special reason that means justice requires this Courtrecall its leave judgment.[9] In declining Mr Prescott's application for leave to appeal, this Court recognisedthe question of law that Mr Prescott wished to pursue, notwithstanding the focus ofhis counsel's submissions.8 Nevertheless, this Court concluded that the proposedappeal did not raise questions that "outweigh[ed] the cost and delay of a furtherappeal".9 That was the fundamental basis upon which leave to appeal was declined.Result[10] The application to recall this Court's leave judgment is declined.[11] The respondent is entitled to costs for a standard application on a band A basiswith usual disbursements.Solicitors:Meredith Connell, Auckland for Respondent8 Court of Appeal leave judgment, above n 1, at [10] and [13].9 At [17].