SIMPSON v R [2004] NZCA 160 (27 July 2004)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA76/04

UNDER Section 144 Summary Proceedings Act 1957

IN THE MATTER OF A determination of the High Court under section 107 of the Summary Proceedings Act 1957

BETWEEN RAYMOND ANDREW SIMPSON
Applicant

AND KAWERAU DISTRICT COUNCIL
Respondent

Coram:

Anderson P Glazebrook J Hammond J

Counsel: Applicant unrepresented

F J Eivers for Respondent

Judgment (On the papers): 27 July 2004

JUDGMENT OF THE COURT DELIVERED BY HAMMOND J

[1] This is an application for special leave to appeal to this Court.
[2] Mr Simpson is the registered owner of a dog called Romp.
[3] Three charges were laid under the Dog Control Act 1996 arising out of separate incidents involving Romp in 2001. He bit two people and rushed at a third person.
[4] Mr Simpson defended the charges before Community Magistrates in the District Court at Whakatane but was convicted on each.
[5] Mr Simpson then appealed against those convictions to the District Court at Whakatane. Judge Rollo, in a considered judgment, dismissed the appeals.
[6] Mr Simpson then appealed to the High Court by way of case stated on certain points of law, pursuant to s114 of the Summary Proceedings Act 1957. Those points were determined in a way which were adverse to Mr Simpson by Laurenson J, in a reserved judgment delivered on 10 November 2003 (HC ROT AP73/02).
[7] Mr Simpson then sought leave to appeal to this Court, under s144 of the Summary Proceedings Act 1957. In an oral judgment delivered on 4 March 2004, Venning J dismissed that application for want of jurisdiction.
[8] It is in this context that Mr Simpson now seeks special leave to appeal to this Court.
[9] This application must be, and is, dismissed for want of jurisdiction. After these offences were considered by the Community Magistrates, there was a right of appeal to a District Court. Mr Simpson exercised that right. There was thereafter a right of appeal (by way of case stated) to the High Court. But s114B(5) of the Summary Proceedings Act 1957 provides, “the decision of the High Court on [such an] appeal ... is final”. And s114B(7) of that Act provides that “nothing in s144 applies in relation to a decision of the High Court made under this section”. It follows that Venning J was entirely correct to dismiss the application for leave to this Court; and there is no jurisdiction to entertain an appeal in this Court.
[10] There remains the issue of costs. The respondent seeks costs on the footing that the present application is effectively the fourth attempt to appeal by Mr Simpson. The correct legal position was carefully explained by Venning J to Mr Simpson. But notwithstanding that explanation Mr Simpson has continued to pursue an “unmeritorious and hopeless claim”, as Ms Eivers put it.
[11] It is inappropriate for this Court, where there is no jurisdiction, to revisit the merits of this matter. But what is relevant for present purposes is that Mr Simpson has endeavoured to pursue this matter well beyond the point where he had exercised the two legal rights of appeal which were open to him, and his endeavours to do so have inflicted unjustified expense upon the opposing party. It must be appreciated that where legal rights have been exhausted, endeavours to prosecute the particular matter beyond its legitimate and lawful bounds will attract awards of costs. The respondent will therefore have costs of $750 on this application, together with its reasonable disbursements of this application as fixed by the Registrar.

Solicitors:
Osborne Gray, Whakatane for Respondent