Underhill v R [2015] NZCA 116 (16 April 2015)

Last Updated: 23 April 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA662/2014 [2015] NZCA 116
BETWEEN	TYRONE WAYNE UNDERHILL Applicant
AND	THE QUEEN Respondent

Hearing:	13 April 2015
Court:	Stevens, Wild and Miller JJ
Counsel:	Applicant in person with his father Mr Wayne Underhill as McKenzie Friend Y Moinfar for Respondent
Judgment:	16 April 2015 at 11.30 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is dismissed.
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REASONS OF THE COURT

(Given by Wild J)

Introduction

[1] Mr Underhill applies under the (since repealed) s 144(3) of the Summary Proceedings Act 1957 for leave to bring a second appeal to this Court in relation to a speeding infringement.
[2] Where the High Court refuses leave to appeal to this Court, s 144(3) allows this Court to grant special leave:

... if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[3] In his notice of application, Mr Underhill sets out the question he wants this Court to determine in this way:

I did not receive a reminder notice and I filed a statutory declaration that was accepted by the District Court Judge, but refused to order that the statutory declaration be enforced.

Background

[4] This is set out in Gilbert J’s judgment declining Mr Underhill’s application for leave to bring a second appeal:^[1]

[1] This is an application for leave to appeal to the Court of Appeal in relation to a speeding infringement.

[2] On 2 August 2012, a Mitsubishi car registered in the name of the appellant was captured on a speed camera exceeding the speed limit. An infringement notice imposing a fine of $80 was issued to the appellant. The fine was not paid and so a reminder notice was issued on 17 September 2012. No hearing was requested pursuant to s 21 of the Summary Proceedings Act 1957.

[3] Over a year later, on 9 October 2013, the appellant filed an application under s 78B of the Act which empowers a District Court Judge or Registrar to correct irregularities in proceedings for infringement notices. The appellant’s application was based on his contention that he transferred ownership of the Mitsubishi to his father in December 2011, although the change was not registered until 13 June 2013. He claims that his father was driving at the time and he wanted the fine transferred to him. The Registrar declined the application on the basis that there was no irregularity in the procedure that had been followed and therefore no basis for the appellant’s application under s 78B.

[4] The appellant sought a review of this decision to a District Court Judge pursuant to s 106F of the Act. The Registrar’s decision was upheld.

[5] The appellant then appealed to this Court. The appeal was dismissed by Simon France J on the basis that there was no merit in the appeal and no jurisdiction for such an appeal.^[2]

[5] Gilbert J then explained his reasons for dismissing Mr Underhill’s leave application:

[7] The application for leave to appeal must be dismissed. First, there was no jurisdiction to appeal to this Court from the decision of the District Court Judge. It follows that there is no right of appeal to the Court of Appeal. Second, there is no merit in the appeal. It is clear that the appellant’s application to the Registrar under s 78B had to be declined because no irregularity in the process was identified. The decision of the District Court Judge declining the review of the Registrar’s decision was correct. Third, there is no question of general or public importance involved in this case that could justify a further appeal.

[8] I agree with Simon France J that if the appellant’s real concern is that his father should pay the fine rather than him, there is nothing to prevent this.

Mr Underhill’s submissions

[6] In his written submission in support of his application, Mr Underhill stated that his submissions were set out in the originating applications he had filed in the District Court and then in the High Court. He made the point that he did not have copies of “the verbatim transcript of the hearings of Simon France J or Gilbert J”, and had not been able to access s 115 of the Summary Proceedings Act online.
[7] In his oral submissions, Mr Underhill confirmed he relied on the papers he had filed. Additionally, he expressed the concern that the name of the respondent should be “Collections” not “New Zealand Police” (as it was in the High Court) or ”The Queen”, as it is in this Court.

Decision

[8] Both Simon France and Gilbert JJ considered that this Court has no jurisdiction to entertain the second appeal Mr Underhill seeks to bring. Simon France J explained the position in this way:^[3]

I conclude by observing that I do not consider there was in any event jurisdiction for this appeal. ... There is considerable authority confirming that a review decision of this sort is neither appealable under the general conviction appeal provision (s 115 of the Summary Proceedings Act 1957), nor under s 72 of the District Courts Act 1947 (which is limited to civil matters).^[4]

[9] We agree. As this Court lacks jurisdiction to hear the appeal Mr Underhill seeks to bring, Gilbert J correctly refused leave.
[10] Quite apart from that, Mr Underhill identifies no question of law in his notice, let alone a question “which, by reason of its general or public importance or for any other reason”, justifies the costs and delays inherent in a second appeal.
[11] As this Court explained in R v Slater,^[5] Parliament intended minor offending such as this to end with any appeal brought to the High Court unless the case really does raise a question of general or public importance. And the Court emphasised – as we again emphasise – that those important requirements of s 144, now contained in s 303 of the Criminal Procedure Act 2011, are not to be diluted.
[12] As to Mr Underhill’s concern that the respondent has been incorrectly named, we agree with Ms Moinfar’s submission that the New Zealand Police was the correct respondent in the Courts below, because it was the informant pursuant to s 21 of the Summary Proceedings Act. That Act and not the Criminal Procedure Act applies here because the infringement offence occurred on 2 August 2012.

Result

[13] For the two reasons explained, this application for leave to bring a second appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Underhill v Police [2014] NZHC 2556 [Leave decision].

^[2] Underhill v Police [2014] NZHC 1367 [HC appeal].

^[3] HC appeal, above n 2, at [10].

^[4] See for example, Page v Ministry of Justice [2013] NZHC 1309; United States of America v Dotcom [2012] NZHC 1353; Evers v Registrar, District Court, Blenheim HC Blenheim AP 1/97, 14 February 1997; Delta Transport (1995) Ltd v Palmerston North District Court Bailiff HC Palmerston North AP 49/96, 6 June 1997. To those authorities cited by Simon France J can be added Drew v Registrar of the District Court at Porirua [2014] NZHC 1678.

^[5] R v Slater [1997] 1 NZLR 211 (CA) at 215.