Doyle v Commissioner of Police [2022] NZCA 2 (31 January 2022)

Last Updated: 10 February 2022

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

CA471/2021 [2022] NZCA 2

	BETWEEN	WAYNE STEPHEN DOYLE First Applicant HARATA RAEWYN PAPUNI Second Applicant
	AND	COMMISSIONER OF POLICE Respondent

Court:	Brown and Collins JJ
Counsel:	R M Mansfield QC, S L Cogan and S R Lack for First and Second Applicants M R Harborow and C R Purdon for Respondent
Judgment: (On the papers)	31 January 2022 at 11.00 am

JUDGMENT OF THE COURT

A The application for leave to appeal is declined.

2. The respondent is entitled to one set of costs for a standard interlocutory application on a band A basis with an uplift of 50 per cent and usual disbursements.

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REASONS OF THE COURT

(Given by Brown J)

Introduction

• [1] On 29 May 2020 the respondent, the Commissioner of Police, filed an application for civil forfeiture orders under the Criminal Proceeds (Recovery) Act 2009 (the Act) against the applicants. In accordance with r 19.2(r) of the High Court Rules 2016 the application took the form of an originating application, supported by affidavits. In response to a request by the applicants for particulars, the Commissioner provided further particulars for four matters in a 22 page letter dated 8 March 2021, namely:

  (a) the benefits alleged to have been derived by the [applicants] and from which significant criminal activity;
  (b) the primary facts upon which the Commissioner relies to assert that the [applicants] have knowingly derived that benefit from significant criminal activity;
  (c) how the relevant assets are alleged to have been tainted; and
  (d) why the [applicants] are alleged to have effective control of the relevant assets.

• [2] The applicants filed an application pursuant to r 19.5A for a direction that the Commissioner file a statement of claim instead of the originating application. That application was dismissed by Brewer J who relevantly stated:^[1]

[20] I consider that the originating application, the affidavits, and the letter of 8 March 2021 together constitute sufficient particularity to communicate the Commissioner’s case to the Court and the respondents. Having regard to the statutory emphasis on the swift and efficient conduct of forfeiture matters, I consider that no formal statement of claim is necessary. It would not, pragmatically, add anything. I am also mindful that it would risk delaying this complex proceeding.

• [3] On 1 July 2021 Brewer J declined the applicants’ application for leave under s 56(3) of the Senior Courts Act 2016 to appeal that ruling.^[2] The applicants now apply directly to this Court for leave to appeal under s 56(5).

Principles governing appeals from interlocutory judgments

• [4] The considerations relevant to applications for leave to appeal from interlocutory judgments are now well established:^[3]

  (a) a high threshold exists;
  (b) the applicant must identify an arguable error of law or fact;
  (c) the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general of precedential value;
  (d) the circumstances must warrant incurring further delay; and
  (e) the ultimate question is whether the interests of justice are served by granting leave.

• [5] This Court in Ngai Te Hapu Inc v Bay of Plenty Regional Council indicated that considerations similar to the principles applicable to applications under the former s 24G of the Judicature Act 1908, as explained in Meates v Taylor [Leave],^[4] apply to applications under s 56(5) of the Senior Courts Act, stating:^[5]

We agree that leave to appeal should only be granted where the significance or implications of an arguable error of fact or law, either for the particular case or for the applicant or as a matter of precedent, warrants the further delay which the appeal process would involve.

Analysis

• [6] The application for leave to appeal is advanced on two bases. First it is contended that the intended appeal raises issues of fundamental importance for the fair operation of the Act, namely the role of pleadings and ensuring that respondents are not ambushed by the Commissioner in the context of applications to forfeit assets of increasingly significant values. It is said that if leave is granted the appeal would help more clearly delineate when a statement of claim should be required in such cases. Alternatively it is contended that, having regard to the apparent complexity of the Commissioner’s claim and the amount at stake in the present case, a statement of claim is a more appropriate form of pleading than the prescribed originating application.
• [7] So far as the former proposition is concerned the starting point is r 19.2 of the High Court Rules which requires that applications under the Act are to be commenced by an originating application. The Act is one of a number of specific statutory provisions in respect of which it is apparent that the originating application procedure is envisaged to provide a speedy and inexpensive mechanism for the disposition of a variety of applications.
• [8] However where a proceeding has been commenced by way of originating application r 19.5A permits a Judge, either by interlocutory order or on his or her own initiative, to direct the parties to file statements of claim and defence. The approach to be taken in the exercise of that power was considered in Commissioner of Police v Li where Lang J stated:^[6]

[9] ... The discretion to require a statement of claim to be filed should only be exercised in cases where that is both necessary and proportionate having regard to the nature of the proceeding.

...

[17] ... The Court would only be justified in directing the Commissioner to file a statement of claim where the originating application procedure has failed to achieve its desired object of communicating the Commissioner’s case to the Court and the respondents. Even then the Court would need to have regard to the issues of proportionality.

• [9] Mr Harborow for the Commissioner noted that the applicants had not offered any alternative to the test as postulated in Li, nor did they engage in any substantive criticism of the test. We agree with Mr Harborow that the discretion afforded to the Court under r 19.5A aptly balances the natural justice rights of a respondent to have adequate notice of the claim against him or her with the purpose of the originating application procedure, namely to provide a relatively quick and inexpensive mechanism for determining proceedings brought under specific enactments. The test in Li recognises that there must be a compelling and cogent reason to depart from the originating applicating procedure given that it is mandated by the rules for applications under the Act.
• [10] So far as the instant case is concerned, Mr Mansfield QC for the applicants contended that the application is both complex and novel, at least when compared to the majority of such applications brought by the Commissioner under the Act. Noting that the application is supported by 33 affidavits said to comprise 9,000 pages, he argued that if a fully particularised pleading is not required in this case then it is difficult to see when such would ever be required in forfeiture applications. He contended that a properly particularised pleading is necessary in order to identify for the Court and applicants how it is alleged that property or benefits were acquired by them and how they had the requisite knowledge.
• [11] However Brewer J ruled that the application, together with the affidavits in support and the detailed letter of particulars, contained sufficient particularity to communicate the Commissioner’s case to both the Court and the applicants and that a formal statement of claim was unnecessary.^[7] In particular he described the affidavit of Stephen Llewellyn Peat as containing the detail, and more, that might be expected of a statement of claim.^[8] He also drew attention to the affidavit of Kylie Anne Cairns which contains the financial analysis on which the Commissioner relies.^[9] In conducting his assessment of proportionality the Judge noted the volume and detail of the affidavits and the particulars and the statutory emphasis on the swift and efficient conduct of forfeiture matters. He concluded that a statement of claim would not add anything while risking delaying the proceeding.^[10]
• [12] We agree with the Judge’s assessment. We do not discern any error of law or fact in the judgment, let alone one of such significance as to satisfy the requirement at [4(c)] above.
• [13] Furthermore as Mr Harborow observed it is well over a year since the applicants signalled that they would seek a statement of claim from the Commissioner. One trial date has already been lost. The matter is currently scheduled for a four week hearing commencing on 11 July 2022. The further delay associated with an interlocutory appeal on the pleading issue is not justified.
• [14] For these reasons we do not consider that the interests of justice would be served by granting leave to appeal.

Result

• [15] The application for leave to appeal is declined.
• [16] The respondent is entitled to one set of costs for a standard interlocutory application on a band A basis with an uplift of 50 per cent and usual disbursements. That uplift is directed on account of the overly long submissions of the applicants of some 22 pages which significantly exceeded the ten page limit prescribed by r 23(4) of the Court of Appeal (Civil) Rules 2005.

Solicitors:
Dominion Law, Auckland for First and Second Applicants

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^[1] Commissioner of Police v Doyle [2021] NZHC 1209 [High Court judgment].

^[2] Commissioner of Police v Doyle & Papuni [2021] NZHC 1619.

^[3] Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].

^[4] Meates v Taylor [Leave] (1992) 5 PRNZ 524 (CA) at 526.

^[5] Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [16]–[17].

^[6] Commissioner of Police v Li [2018] NZHC 292, (2018) 24 PRNZ 268.

^[7] High Court judgment, above n 1, at [20].

^[8] At [12].

^[9] At [13].

^[10] At [20].