Blair v Attorney-General CA51/06 [2006] NZCA 428 (6 July 2006)

Last Updated: 27 January 2014

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA51/06

BETWEEN PAUL BLAIR Applicant

AND ATTORNEY-GENERAL First Respondent

AND KEN RUNCIMAN Second Respondent

AND JOHN HALL Third Respondent

Hearing: 19 June 2006

Court: Robertson, Arnold and Ellen France JJ Counsel: Applicant in person

C C Inglis for Respondents

Judgment: 6 July 2006

_{JUDGMENT OF THE COURT}

_{Leave to appeal is refused.}

REASONS OF THE COURT

_{(Given by Arnold J)}

PAUL BLAIR V ATTORNEY-GENERAL AND ORS CA CA51/06 6 July 2006

Introduction

[1] This is an application under s 67 of the Judicature Act 1908 for special leave to appeal to this Court against a judgment of Lang J delivered on 7 November 2005. The applicant sought leave from the High Court, but that was refused by Lang J on

16 February 2006.

Basis of proposed appeal

[2] The question in respect of which the applicant seeks leave is:

Are the determinations of a Registrar or Bailiff of the District Courts, made under the vested discretions pursuant to ss 86 and 86A of the Summary Proceedings Act 1957, to enter into extensions of time to pay fines and/or to pay fines by way of instalments, “determinations” that fall within the ambit of s 27(1) of the New Zealand Bill of Rights Act 1990?

[3] The applicant also seeks leave to appeal against the costs orders made against him in the District Court and in the High Court, although he failed to include the latter in his application to the High Court for leave to appeal to this Court.

Background

[4] The applicant was paying various fines under an instalment arrangement entered into with the Department for Courts under s 86(1) of the Summary Proceedings Act 1957. Having incurred two further fines the applicant sought to have them included in the existing instalment arrangement by having its term extended. He dealt first with the third respondent, a bailiff, and then with the second respondent, a Deputy Registrar. The Deputy Registrar sought details of the applicant’s means. As a consequence of what that revealed, he declined the applicant’s request and referred the matter to a District Court Judge under s 88(1) of the Summary Proceedings Act.

[5] The applicant sought a review by the District Court under s 106F of the Summary Proceedings Act of the Deputy Registrar’s refusal to extend the existing arrangement. He also issued proceedings alleging breaches of s 27(1) of the New Zealand Bill of Rights Act 1990 (BORA).

[6] In the District Court, Judge Weir upheld the applicant’s review of the Deputy Registrar’s decision and extended the instalment arrangement to cover the additional fines. However, the Judge dismissed the applicant’s BORA claim.

[7] The applicant appealed against that dismissal to the High Court. On

7 November 2005 Lang J dismissed the appeal. The applicant then sought leave from the High Court to appeal to this Court. On 16 February 2006 Lang J refused that application, and in a further decision issued on the same day awarded costs against the applicant of $1,500. The applicant now seeks special leave to appeal from this Court.

Discussion

[8] The Court may grant leave if there is a question of law which, by reason of its general of public importance, ought to be submitted to the Court for decision. The relevant principles were summarised by this Court in Snee v Snee (1999)

[1999] NZCA 252; 13 PRNZ 609 at [22].

[9] The essential point of contention between the parties on this application is whether the proposed appeal raises an arguable point. The applicant emphasises the language of s 27(1):

Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.

[10] The applicant says that the Deputy Registrar made a “determination” in respect of his “interests” recognised by law when he refused to extend the existing instalment arrangement to cover the new fines. The discretion of a Registrar (or Deputy Registrar) under s 86 and a bailiff under s 86A (which must, in effect, be

consented to by a Registrar - see s 86A(2), (3) and (4)) is, the appellant argues, “inherently adjudicative in nature”.

[11] Counsel for the respondents, Ms Inglis, argued that s 27(1) is not applicable because, on the basis of the authorities, the Registrar and bailiff are not making determinations of the type referred to in s 27(1).

[12] As this Court said in Chisholm v Auckland City Council [2005] NZAR 661, s 27(1) will not be engaged unless the public authority concerned has the power to “determine” in the sense of “adjudicate on”. The Court also said that the words “public authority” in s 27(1) takes some colour from the word “tribunal” in the subsection (at [32]). In that case the Court held that the decision of a Council to exercise its emergency powers under s 330 of the Resource Management Act 1991 to dispose of septic tank waste on land adjacent to the plaintiff’s land did not fall within the scope of s 27(1).

[13] As was noted by Lang J, the High Court has held that a variety of decisions by officials fall outside the scope of s 27(1). Among these are decisions made by employees of the Department of Work and Income about the recovery of overpaid benefits under s 86(1A) of the Social Security Act 1964 (Daniels v Chief Executive of the Department of Work and Income [2002] NZAR 615), by the Official Assignee to convene a public examination of a debtor (Anderson v Official Assignee [1996]

2 NZLR 167), by a local authority to acquire land compulsorily under the Public

Works Act 1981 (Colin Geddes Ltd v Wellington Regional Council (1996)

3 HRNZ 220), and by an immigration official to refuse a visitor’s permit

(Ubilla v Minister of Immigration (CIV 03-485-2757 HC WN, MacKenzie J,

19 February 2004)). These and other cases are discussed in Butler and Butler, The

New Zealand Bill of Rights Act: A Commentary (LexisNexis NZ Ltd, 2005), at paras

25.2.18 – 25.2.24.

[14] As to the payment of fines, the general rule is that fines must be paid within

28 days of imposition (s 80 of the Summary Proceedings Act). That is the basic obligation. However, Registrars (and bailiffs, subject to the Registrar’s power of veto) may enter into arrangements with defendants for payment on an instalment

basis. Where a Registrar considers that a defendant does not have the means to pay a fine, he or she must refer the matter to a District Court Judge, with a report (s 88(1)). A defendant who is dissatisfied with a Registrar’s refusal to enter into an arrangement may have the refusal reviewed by a District Court Judge (s 106F). We agree with Lang J that a decision of a Registrar under s 86 (or of a bailiff under s 86A) is not a determination of an adjudicative character falling within s 27(1). We consider the proposed appeal to be without merit, and accordingly refuse leave.

[15] As to the proposed costs appeals (and ignoring for the purpose of analysis the applicant’s failure to seek leave from the High Court in respect of the costs award made by that Court), costs are a matter of discretion. Normally they follow the event. In respect of the costs awards made against the applicant in the present case, there has been no error of principle, no consideration of irrelevant matters and no failure to consider relevant matters; nor is there any basis for saying that the discretion has been exercised in a way that is manifestly unreasonable. Indeed, as Lang J noted, the District Court Judge made an award of only 20% of the amount that might otherwise have been justified. As to the award made by Lang J, the Judge indicated that he would have been prepared to order costs on a 2B basis, but awarded the lesser amount of $1500 because that was all that the respondents sought. The mere fact that a plaintiff raises a BORA claim does not mean that if unsuccessful, he or she should be sheltered from a costs order in favour of the defendant.

Costs

[16] The respondents seek costs in this Court. There is no reason why costs should not follow the event. However, in the circumstances of this case, we award costs in favour of the respondents in the amount of $500 rather than the $1,500 that would normally be allowed.

Solicitors:

Crown Law Office, Wellington for Respondents