Blake v Thames District Council [2022] NZCA 557 (17 November 2022)

Last Updated: 21 November 2022

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

CA456/2022 [2022] NZCA 557

	BETWEEN	ROGER WILLIAM BLAKE Applicant
	AND	THAMES DISTRICT COUNCIL First Respondent NEW ZEALAND POLICE COMMISSIONER Second Respondent MEDSAFE Third Respondent

Court:	Gilbert and Clifford JJ
Counsel:	Applicant in person B M McKenna for First Respondent C K Whyte for Second and Third Respondents
Judgment: (On the papers)	17 November 2022 at 11 am

JUDGMENT OF THE COURT

1. The application for leave to appeal is declined.
2. The applicant must pay the second and third respondents one set of costs for a standard application on a band A basis and usual disbursements.

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REASONS OF THE COURT

(Given by Clifford J)

Introduction

• [1] On 1 June 2022 the High Court dismissed “Roger-William’s” application for stay of criminal proceedings pending judicial review of related search warrants.^[1] The High Court subsequently declined leave to appeal its decision.^[2] Roger-William now seeks leave from this Court pursuant to s 56(5) of the Senior Courts Act 2016.
• [2] Roger‑William, who calls himself a “living man, roger-william, house of blake”,^[3] represents himself in this application.
• [3] The first respondent, Thames District Court, abides this Court’s decision. The application is opposed by the second and third respondents, the Commissioner of Police and Medsafe. Submissions were filed jointly for them.

Background

• [4] In July 2020 police applied for warrants to search two premises associated with Roger-William and NZ Water Purifier Ltd, a company of which Roger-William was a director. The applications concerned alleged offending under ss 20 and 43 of the Medicines Act 1981. Those provisions prohibit the sale, distribution and advertisement of new medicines without consent; and the possession of prescription medicines without reasonable excuse. The Thames District Court issued those warrants and they were executed on 15 July 2020. Charges against Roger-William and NZ Water Purifier followed in December 2020.
• [5] In April 2021 Roger-William commenced judicial review proceedings against police, Medsafe, the Thames District Court and nine other named defendants regarding the legality of the warrants. Based on his amended statement of claim filed in June 2021, Roger-William alleges the District Court’s issuance of the warrants, the police’s decision to apply for them, and Medsafe’s decision to “initiate and/or proceed” with the application for them, were unlawful. He says there were no reasonable grounds to suspect a relevant offence had or would have been committed. The searches were merely “fishing expedition[s]”, and various of his rights were breached in the process.
• [6] In February 2022 Roger-William filed an application in the High Court under s 15 of the Judicial Review Procedure Act 2016 to stay the charges pending determination of the judicial review proceedings. It was that application the High Court declined on 1 June 2022, and which Roger-William now seeks to appeal.
• [7] Downs J noted the power to stay criminal proceedings needed to be understood in the context that, as was said by this Court in Gill v Attorney-General, judicial review is not the appropriate means to challenge the issuance, validity or execution of a search warrant.^[4] Something exceptional is required to entertain such a challenge and, the Judge reasoned, the same must also be true when a stay is sought pending such a challenge.^[5]
• [8] The Judge held Roger-William’s arguments fell well short of that high threshold.^[6] A stay was not necessary to preserve his position in the District Court: the validity of the search warrants could be challenged in that Court in the usual way.^[7] In assessing the strength of Roger-William’s judicial review claim, the Judge considered the warrants were not self-evidently invalid. Nothing stood out so as to require a stay.^[8]
• [9] The Judge struck out the judicial review proceedings against the nine named defendants as disclosing no reasonably arguable cause of action, leaving them to proceed against only the Thames District Court, the Commissioner and Medsafe.^[9] He directed the prosecution to discover some but not all of the material Roger-William sought.^[10]
• [10] In declining leave to appeal his decision, Downs J noted there was a high threshold for leave to be granted for an interlocutory appeal, and that threshold was not met here.^[11]

This application

• [11] Roger-William’s application of 5 September 2022 advances a multitude of grounds. He seeks leave to appeal all aspects of Downs J’s decision, which he says was biased and ignorant of the facts.
• [12] Many of his grounds allege the Judge made errors relating to Roger-William’s actual name/status/“fictional personage” and status as a “Minister of God’s Word”. He claims several provisions of the Search and Surveillance Act 2012 were breached in the issuance and execution of the warrant. Those breaches, he says, have been “admitted” by the respondents because, having been particularised by Roger-William, the respondents’ “silence/tacit agreement is upheld as acquiescence to the fact :roger‑william:’s claims ... are now admitted”.
• [13] Roger-William largely repeated those grounds in a further set of documents in his “Transmission in support of application for leave to appeal”.
• [14] The Commissioner and Medsafe submit the High Court did not err and Roger‑William’s grounds are unmeritorious. They reject Roger-William’s claim that they have somehow admitted wrongdoing. They say ultimately they filed a statement of defence in September 2021 rejecting each of Roger-William’s core allegations. They did not have to respond to each of Roger-William’s particulars.
• [15] We record for completeness that Mr Blake, in the same application, sought to appeal the Judge’s decision to strike out the nine named respondents to the judicial review proceeding. We do not address that in this judgment because Mr Blake does not require leave to appeal that order.^[12] However, even taking the date of filing of the present application as the date for which notice to appeal the strike out orders was filed, Mr Blake would need an extension of time to appeal those orders.

Analysis

• [16] The threshold for leave to appeal an interlocutory decision is a high one. An applicant must identify an arguable error of law or fact which is of general or public importance, or of sufficient importance to the applicant to outweigh the lack of general or precedential value. The high bar for leave serves as a “filtering mechanism” to ensure that unmeritorious appeals of interlocutory orders do not unnecessarily delay the proceedings in which those orders were made. Ultimately, the question is whether the interests of justice would be served by a grant of leave.^[13]
• [17] This application falls well short of that high bar.
• [18] The errors allegedly made by the High Court are not arguable and in any event are not of sufficient importance to warrant further delay. In particular:

(a) Submissions based on constructs like a “living man” who is somehow separate from the actual person have been squarely rejected.^[14]

(b) It is not the position that failure to respond to a particular means the particular is to be taken as admitted. Rule 5.48 of the High Court Rules provides the statement of defence must either admit or deny the “allegations of fact” in the statement of claim. Whilst an allegation not denied is to be treated as admitted, as explained in McGechan on Procedure:^[15]

It is not necessary to provide answers in a statement of defence to particulars in the statement of claim. The allegations of fact referred to in r 5.48(1) and (3) are those facts necessary to show the cause of action, not particulars. Particulars are not deemed admitted if the defendant ignores them. As a practical matter, the defendant’s own pleading, including particulars, might answer the plaintiff’s particulars in substance, but that is not required as a matter of form. The defendant may assume that if a factual statement or allegation is classed as a particular, the plaintiff had tendered it not as a material fact but to inform the defendant of the details of the claim, and that it did not require an answer: Walker v Bennett (2009) 19 PRNZ 350 (HC); Commerce Commission v Fletcher Challenge Limited (1999) 6 NZBLC 102,752 (HC); Re Burgee Investments Limited (1994) 18 TRNZ 786 (HC).

In our view it is clear from the statement of defence filed on 24 September 2022 Roger-William’s allegations of fact were denied.

• [19] More fundamentally, and as the Judge noted, judicial review is generally not the appropriate forum to challenge a search warrant. That is more properly to be dealt with in the criminal proceedings by the District Court. There Roger-William can ventilate his allegations of breaches of the Search and Surveillance Act and of his rights. Whilst this Court has recognised judicial review could be used “where the defect in the search warrant is of a fundamental nature”,^[16] it by no means clear that the warrants here were fundamentally defective.
• [20] Moreover, even if Roger-William succeeds in his judicial review proceeding, the evidence might nevertheless be admitted in the criminal proceedings under s 30 of the Evidence Act 2006. It follows that the judicial review proceedings are unnecessarily causing further expense and delay. A stay of resolution of the criminal charges pending determination of those proceedings would not therefore have been in the interests of justice, and nor would a grant of leave to appeal the Judge’s decision.

Result

• [21] The application for leave to appeal is declined.
• [22] The applicant must pay the second and third respondents one set of costs for a standard application on a band A basis and usual disbursements.

Solicitors:
Crown Law Office, Wellington for First Respondent
Crown Solicitor, Hamilton for Second and Third Respondents

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^[1] Blake v Thames District Court [2022] NZHC 1235 [Stay decision]. To “avoid consternation” the High Court referred to the applicant as Roger-William instead of Mr Blake.

^[2] Blake v Thames District Court [2022] NZHC 1974 [Leave decision].

^[3] Stay decision, above n 1, at [2].

^[4] At [12]–[17], citing Gill v Attorney-General [2010] NZCA 468, [2011] 1 NZLR 433 at [29].

^[5] At [17].

^[6] At [29].

^[7] At [19]–[20].

^[8] At [27].

^[9] At [30]–[33].

^[10] At [34]–[45].

^[11] Leave decision, above n 2, at [4], citing Greendrake v District Court of New Zealand [2020] NZCA 122.

^[12] Senior Courts Act 2016, s 56(4)(a).

^[13] Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13]–[14], cited with approval by this Court in Greendrake v District Court of New Zealand, above n 11, at [6].

^[14] See for example Larsen v Police [2020] NZHC 2520 at [24]; and Honana v Police [2020] NZHC 3244 at [3]–[4].

^[15] Andrew Beck and others McGechan on Procedure (looseleaf ed, Brookers, updated to 2 February 2021) at [HR5.48.08].

^[16] Gill v Attorney-General, above n 4, at [20].