Gregory v Gollan & ors [2007] NZCA 528 (21 November 2007)

Last Updated: 7 December 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA404/07

[2007] NZCA 528

BETWEEN MICHAEL GREGORY
Applicant

AND THOMAS GOLLAN & ORS
Respondents

Hearing: 12 November 2007

Court: William Young P, Glazebrook and Chambers JJ

Counsel: G F Little and C S Henry for Applicant
M T Davies for Respondents

Judgment: 21 November 2007 at 4.30pm

JUDGMENT OF THE COURT

1. The application for special leave to appeal out of time is granted. Special leave to appeal under s 26P(1AA) of the Judicature Act 1908 is also granted.
2. Costs are reserved.

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REASONS OF THE COURT
(Given by Glazebrook J)

Introduction

[1] Mr Gregory claims damages from the respondents in relation to the actions of the police in the early morning of 24 June 2001. This involved the police entering Mr Gregory’s home and arresting him for a burglary in which it is now conceded he had no involvement.
[2] On 26 September 2005 Mr Gregory gave notice that he required the proceeding to be tried by a Judge and jury. On 29 November 2005, the second respondent applied, pursuant to s 19A(5) of the Judicature Act 1908, for an order that the proceeding be tried before a Judge alone. This application was supported by the other respondents.
[3] On 21 September 2006, Associate Judge Doogue, in CIV 2005-404-003485, granted the respondents’ application and directed that the trial take place before a Judge alone. On 19 February 2007, Allan J dismissed Mr Gregory’s application for review of the Associate Judge’s decision and, on 4 July 2007, Allan J declined Mr Gregory’s application for leave to appeal to this Court.
[4] Mr Gregory now applies for special leave to appeal to this Court under s 26P(1AA) of the Judicature Act 1908 against Allan J’s decision of 19 February 2007. As he was late in filing his application, Mr Gregory also seeks special leave to appeal out of time.

Mr Gregory’s contentions

[5] Mr Gregory submits that special leave under s 26P(1AA) should be granted because of the constitutional significance of the right to trial by jury. He submits that the High Court decisions were wrong because no reasonable judge could, applying the correct principles, have directed that what he contends is a simple case of unlawful actions by public officers should be tried by a Judge alone.
[6] In the alternative, he submits that, if the principles relating to applications under s 19A(5) as set out in the case law to date were correctly applied in this case, then they should be changed to accord proper significance to the constitutional right to trial by jury.
[7] Mr Gregory also submits that, given the importance of the right to a jury, the application should not have been heard by an Associate Judge.

Decision

[8] We are satisfied that Mr Gregory’s proposed appeal raises issues of principle of sufficient importance to justify the granting of special leave under s 26P(1AA). Special leave is therefore granted.
[9] An adequate explanation for the late filing has been provided and special leave to appeal out of time is also granted.
[10] Costs are reserved.

Solicitors:
Witten-Hannah Howard, Auckland for Applicant
Stephen Ross, New Zealand Police Association, Wellington, for First, Third, Fourth and Fifth Respondents
Meredith Connell, Auckland for Second Respondent