Prescott v Police [2020] NZCA 206 (2 June 2020)

Last Updated: 12 June 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA115/2020 [2020] NZCA 206

	BETWEEN	PETER RICHARD PRESCOTT Applicant
	AND	NEW ZEALAND POLICE First Respondent DISTRICT COURT AT AUCKLAND Second Respondent

Court:	French and Gilbert JJ
Counsel:	Applicant in person A F Todd for First Respondent
Judgment: (On the papers)	2 June 2020 at 11 am

JUDGMENT OF THE COURT

1. The application for an extension of time to appeal under r 29A of the Court of Appeal (Civil) Rules 2005 is granted. The applicant is directed to file the notice of appeal not later than 30 July 2020.
2. The applicant is directed to file and serve the case on appeal not later than 30 September 2020.

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REASONS OF THE COURT

(Given by French J)

Introduction

[1] Mr Prescott wishes to bring an appeal against a decision of the High Court in which Gault J declined his judicial review application.^[1] The final date for filing the appeal was 7 February 2020. Mr Prescott did not file any documents in this Court until 5 March 2020. He now seeks an extension of time to appeal under r 29A of the Court of Appeal (Civil) Rules 2005.
[2] The application for an extension of time is opposed by the New Zealand police. In accordance with usual practice, the second respondent is not taking an active part in the proceeding.

Background

[3] Mr Prescott issued civil proceedings in the District Court against the New Zealand police alleging a number of breaches of the New Zealand Bill of Rights Act 1990. The claim arose from an incident during the course of which Mr Prescott had been arrested for obstructing a police officer and taken to a police station where he was detained for two hours.
[4] The claim came before Judge Cunningham who found the police had acted lawfully and had not breached the New Zealand Bill of Rights Act.^[2]
[5] Dissatisfied with that outcome, Mr Prescott then appealed Judge Cunningham’s decision to the High Court. He also initiated judicial review proceedings alleging misconduct on the part of the Judge including bias, intimidation, tampering of the notes of evidence and breach of natural justice.
[6] The appeal and the judicial review proceeding were heard at the same time in the High Court. Gault J upheld Judge Cunningham’s decision and dismissed the judicial review proceedings. He found there was no substance to the allegations against Judge Cunningham.

The application for an extension of time

[7] In determining applications for extensions of time, the Court considers various factors with the ultimate question being what the interests of justice require. The relevant factors include the length of the delay, the reasons for it, the conduct of the parties, prejudice to the respondent, the significance of the issues, and in some limited cases the merits of the appeal.^[3]
[8] Applying those principles to this case, the delay in filing the appeal is short.
[9] There is also, in our view, a reasonable explanation for the delay. Mr Prescott had an appeal as of right to this Court in relation to the judicial review proceeding but not in relation to the substantive appeal. The latter required him to obtain leave because any appeal to this Court would be a second appeal. However, Mr Prescott, who is self-represented, mistakenly thought he needed leave in respect of both proceedings. He therefore attempted to file a leave application in relation to the judicial review proceedings on 4 February 2020 in the High Court. Once the mistake was drawn to his attention, he acted promptly and filed documents in the correct Court. The initial mistake was understandable.
[10] The delay has not caused any prejudice to the New Zealand police.
[11] Further, there is no evidence of obstructive or delaying tactics on the part of Mr Prescott in the conduct of the litigation such as would count against an extension of time being granted.
[12] As for the significance of the issues raised by the proposed appeal, taken at face value, they would seem to be significant. However, counsel for the New Zealand police submits they are not significant because they are wholly unsupported by the evidence and the entire appeal is lacking in merit. The grounds of the appeal as currently formulated are that Gault J failed to address the District Court Judge’s alleged serious acts of misconduct and failed to consider certain media reports. Counsel for the police argues that as the High Court decision demonstrates these matters were however all addressed and decisively rejected, placing the appeal in the “clearly hopeless” category.^[4]
[13] We acknowledge that the appeal at this preliminary stage does seems very weak. However, in a case, where there has been an accidental slip-up in the exercise of a right and a very short period of delay, we consider it would be wrong to make merits the decisive consideration.
[14] Having regard to all the circumstances, we are satisfied it is in the interests of justice to grant the application for an extension of time.

Outcome

[15] The application for an extension of time to appeal under r 29A of the Court of Appeal (Civil) Rules is granted. The applicant is directed to file the notice of appeal not later than 30 July 2020.
[16] The applicant is directed to file and serve the case on appeal not later than 30 September 2020.

Solicitors:
Crown Law Office, Wellington for First Respondent

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^[1] Prescott v Police [2019] NZHC 3376.

^[2] Prescott v Police [2016] NZDC 14357.

^[3] Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38]–[39].

^[4] At [39(c)].