PRESCOTT v NEW ZEALAND POLICE [2022] NZCA 302

PRESCOTT v NEW ZEALAND POLICE [2022] NZCA 302 [8 July 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA150/2022[2022] NZCA 302BETWEEN PETER RICHARD PRESCOTTAppellantAND NEW ZEALAND POLICERespondentCourt: Miller and Collins JJCounsel: Appellant in personA B Goosen for RespondentJudgment: 8 July 2022 at 9.30 amJUDGMENT OF THE COURTA The application for an order suspending adjudication of bankruptcy isdeclined.B The respondent is entitled to costs for a standard application on a band Abasis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Mr Prescott has applied under s 416 of the Insolvency Act 2006 for an ordersuspending the adjudication of his bankruptcy.Background[2] The events leading to the current application can be summarised in thefollowing way:(a) On 20 July 2016, a speed camera recorded that a car registered inMr Prescott's name was travelling above the speed limit.(b) Mr Prescott was sent an infringement notice. He denied the charge.(c) On 27 October 2016, Mr Prescott failed to appear before Justices of thePeace (JPs), who heard and determined the charge in Mr Prescott'sabsence. The JPs imposed a fine of $80 and court costs of $30.Mr Prescott appealed the decision of the JPs.(d) On 21 March 2018, the District Court dismissed Mr Prescott's appeal.1(e) Rather than seek leave to bring a second appeal, Mr Prescott applied tojudicially review the District Court decision. Jagose J struck outMr Prescott's application and ordered Mr Prescott pay the respondentcosts and disbursements in the sum of $6,943.96.2(f) Mr Prescott then unsuccessfully applied to have the High Court recallits judgment.(g) Next, Mr Prescott applied to this Court for an extension of time toappeal the High Court judgment and for a stay of the costs order. On22 August 2019, this Court declined both applications and orderedMr Prescott pay the respondent a further $5,798 by way of costs anddisbursements.31 Police v Prescott [2018] NZDC 5372.2 Prescott v Police [2019] NZHC 175.3 Prescott v Police [2019] NZCA 380.(h) Mr Prescott then unsuccessfully applied for leave to appeal to theSupreme Court. The Supreme Court declined leave and awarded afurther $2,500 in costs to the respondent.4(i) Mr Prescott then sought leave to appeal the District Court decision outof time. That application was granted by the High Court on 5 June2020.(j) On 27 August 2020, Lang J granted Mr Prescott's application to bringa second appeal and allowed the appeal.5(k) Mr Prescott then applied to the High Court, Court of Appeal andSupreme Court to recall the earlier decisions concerning his failedattempt to judicially review the District Court judgment. Thoseapplications were declined.6(l) On 8 December 2020, the police served a bankruptcy notice onMr Prescott. That notice stated Mr Prescott owed the police $6,943.96in relation to the costs award made against him in Jagose J's decision.(m) An application by Mr Prescott to set aside the bankruptcy notice wasdismissed by Associate Judge Bell on 5 May 2021.7 TheAssociate Judge awarded costs of $12,308.50 and disbursements of$160.8(n) On 2 August 2021, the police served a creditor's application for anadjudication order on Mr Prescott. That application stated Mr Prescottowed the police $27,710.46.4 Prescott v Police [2019] NZSC 133.5 Prescott v Police [2020] NZHC 2191.6 Prescott v Police [2021] NZHC 483; Prescott v Police [2021] NZCA 24; and Prescott v Police[2021] NZSC 18.7 Police v Prescott [2021] NZHC 1004.8 Police v Prescott HC Auckland CIV-2020-404-2232, 27 May 2021 (minute of Associate JudgeBell) at [6].(o) On 28 February 2022, Associate Judge Gardiner adjudged Mr Prescottbankrupt and made a further order for costs.9 Mr Prescott then filed anappeal against the order adjudging him bankrupt.(p) On 9 May 2022, Mr Prescott filed his application to suspend theadjudication of his bankruptcy pending the determination of his appeal.The application[3] Mr Prescott has filed two sets of submissions from which we distil thefollowing key grounds.Miscarriage of justice[4] Mr Prescott contends a miscarriage of justice occurred during the bankruptcyhearing because Associate Judge Gardiner failed to make allowances for his hearingdisability. Mr Prescott argues that his disability meant he "technically was not present"at the hearing and that he was effectively excluded from responding in a meaningfulway to the creditor's oral submissions.Fresh evidence[5] Mr Prescott relies on a letter from the Independent Police Conduct Authority(the IPCA) dated 27 January 2022. That letter relates to events arising from an incidenton 25 November 2017 when Mr Prescott was stopped by a police officer and issuedwith an infringement notice for driving a vehicle without a warrant of fitness. TheIPCA referred to a recording Mr Prescott made of his exchanges with the police officerand the police officer's subsequent evidence before JPs. The IPCA concluded thepolice officer probably "unwittingly" misled the Court.[6] Mr Prescott says the findings of the IPCA conclusively show the police hadacted in bad faith when issuing traffic infringement notices against him.9 Police v Prescott [2022] NZHC 306.Set-off[7] Mr Prescott argues that the letter from the IPCA shows he has a claim againstthe police that far exceeds the debt that led to his bankruptcy. He says that this"set-off" should now be recognised as a defence to the bankruptcy adjudication andthat it would be unjust and inequitable not to suspend the adjudication pendingdetermination of his appealLegal principles[8] The principles that govern an application to suspend adjudication are the sameas those that apply for a stay of execution of judgment pending an appeal.10[9] Relevant considerations include:(a) the strength of the appeal;(b) whether the applicant's right of appeal will be rendered nugatory if astay is not granted;(c) the bona fides of the applicant in prosecuting his appeal;(d) whether the respondent will be injuriously affected by the stay;(e) the novelty and importance of the questions involved;(f) the public interest in the proceedings; and(g) the overall balance of convenience.10 Bioletti v Commissioner of Inland Revenue [2013] NZCA 465 at [3].AnalysisStrength of the appeal[10] In our assessment the High Court was right when it refused to acceptMr Prescott's set-off argument. Even if there is merit in his allegations against thepolice, the alleged breaches of his rights are unlikely to lead to the award of anysignificant sum of damages that would equal or exceed his debt.[11] Furthermore, there is no merit in the argument Mr Prescott was unable torespond to the creditor's oral submissions. Even if we assumed for present purposesthat Mr Prescott had a disability that made him unable to respond, we have alreadyfound that there is no merit to the set-off argument that he proposed to raise.[12] We acknowledge that Mr Prescott was successful in setting aside the originalinfringement notice on appeal. However, the costs orders against Mr Prescott weremade on the basis that he brought unnecessary judicial review proceedings. Thisconclusion is unaffected by whether his appeal against the infringement notice wassuccessful.[13] The strength of the appeal therefore weighs very heavily against suspendingthe adjudication pending the hearing of the appeal.Whether the applicant's right of appeal will be rendered nugatory if a stay is notgranted[14] Mr Prescott can appeal his adjudication to this Court under s 414(2) of theInsolvency Act. His right of appeal will not be rendered nugatory if the suspensionapplication is declined.The bona fides of the applicant[15] There is no suggestion Mr Prescott will fail to pursue his appeal, although hehas still to pay security for costs or obtain a waiver.Whether the respondent will be injuriously affected by a stay[16] Mr Prescott will not suffer any harm if the suspension is not granted. He hasnot pointed to any specific harm beyond that inherent in being bankrupt. Conversely,the respondent is entitled to the benefit of its judgment in the High Court withoutfurther delay.The novelty and importance of the questions involved[17] While the allegation of a breach of fair trial rights potentially raises animportant issue, the material placed before us leads us to the conclusion that there islittle chance of the appeal succeeding.The public interest in the proceeding[18] There is no public interest in the application.The overall balance of convenience[19] The balance of convenience favours the respondent in this case. No prejudicewill be caused to Mr Prescott if the application for suspension is declined. On theother hand, the police are entitled to the benefit of their judgment in the High Court.Result[20] The application for an order suspending adjudication of bankruptcy is declined.[21] The respondent is entitled to costs for a standard application on a band A basisand usual disbursements.Solicitors:Crown Law Office, Wellington for Respondent