Underhill v Police [2013] NZHC 2063 (14 August 2013)

Last Updated: 23 August 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000067 [2013] NZHC 2063

BETWEEN	WAYNE UNDERHILL Appellant
AND	NEW ZEALAND POLICE Respondent

CRI-2013-404-000065 CRI-2013-404-000066
BETWEEN	WAYNE UNDERHILL Appellant
AND	AUCKLAND TRANSPORT Respondent

Hearing:	2 August 2013
Appearances:	Appellant in person B Hamlin for New Zealand Police VR James for Auckland Transport
Judgment:	14 August 2013

_{JUDGMENT OF WOOLFORD J}

This judgment was delivered by me on Wednesday, 14 July 2013 at 12.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

_{Date:...............................}

UNDERHILL v NEW ZEALAND POLICE [2013] NZHC 2063 [14 August 2013]

Background

[1] On 27 May 2013, I dismissed Mr Underhill’s appeal against the imposition of fines imposed on him on one charge of making an unsafe lane change, two charges of failing to display a current registration label on his car, and one charge of parking his car in excess of the specified time limit.

[2] He now seeks leave to appeal to the Court of Appeal. Leave may only be granted on a question of law and then only if, in my opinion, the question of law 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 application for leave to appeal, Mr Underhill states he seeks leave on the following questions of law:

1 The New Zealand Constitution Act 1952 renders the Constitution Act

1986 invalid.

Alternatively

2. Woolford J also said that this is a misprint and the Statute Law Society have written on page 139 of the Statute Law Review, reference to the Soviet Law Reform which clearly indicates that this must be a misprint and he asked me to comment on that:
   

I replied that the perestroika in the Soviet Union, was a political reformation in the Soviet Union of 1986 and the Statute Law Society highlight the parallels between New Zealand in 1986 of restructuring of the political and economic systems.

[4] At the hearing of his application for leave to appeal, Mr Underhill provided me with three further documents. The first document related to the Treaty of Waitangi. It was a submission that the accepted history of the drafting of the Treaty of Waitangi is a complete and total fabrication and that the truth is Aperahama Taonui of Te Popoto was the principal author. The second document related to the Butterworths New Zealand Law Dictionary 4th Edition 1995 and the opinion of Crown counsel, Jo Mildenhall, that the two entries in the dictionary referring to the New Zealand Constitution Act 1952 are obvious misprints that were not detected by

the proof-readers or the editorial board.

[5] The third document was an exchange of e-mails between Mr Underhill and the former Professor Peter Spiller, the editor of the Butterworths New Zealand Law Dictionary 4th Edition 1995 (now Judge Spiller). In an e-mail to Mr Underhill, Judge Spiller confirms that the reference to 1952 was a typing error and was removed in subsequent editions, including that published at the end of 2011.

[6] At the hearing of the appeal, the essence of Mr Underhill’s argument was that his appeal should be allowed because the New Zealand Government was in some way invalidly constituted and any legislation passed by it, including the Land Transport Act 1998 and its associated regulations or rules, including the Land Transport (Motor Vehicle Registration and Licensing) Regulations 2011 and the Land Transport (Road User) Rules 2004 was invalid. In my judgment I noted that Mr Underhill relied on an obvious typographical error in an article published in the Statute Law Review when reference made to the New Zealand Constitution Act 1952 (rather than 1852). I noted that Mr Underhill appeared to believe that the UK Parliament did pass another New Zealand Constitution Act in 1952, a hundred years after the 1852 Act and noted his advice that he was making enquiries in the UK to obtain a copy.

[7] Although on its face, the question whether the New Zealand Constitution Act

1952 renders the Constitution Act 1986 invalid, is a question of law, it is based on a fundamental error by Mr Underhill, who continues to believe that there must be a New Zealand Constitution Act 1952 somewhere, notwithstanding the advice received from Crown Law Office and Judge Spiller that the reference to 1952 is a misprint.

[8] In the notice of application for leave to appeal, Mr Underhill also states I am not qualified to make such a bold statement against a distinguished fraternity of accomplished scholars: PhD and LL.D, Doctor(s) of Philosophy and Laws. He says that Wylie J made the same mistake and his appeal holds to the legal principles of a foreign Queen, who struggled to maintain law and order over her European subjects. He states that it is the old cliché “history always repeats itself” and Wylie J was in way over his head. He says that nothing either I or Wylie J say or do can change what has been written in the law and history books.

[9] With respect, nothing that Mr Underhill has submitted, either orally or in writing, persuades me that the question of law identified by Mr Underhill 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. To put it bluntly, Mr Underhill is misguided if he continues to advance the same argument. His application for leave to appeal is dismissed.

Result

[10] I award costs of $226 against Mr Underhill in respect of this unsuccessful application for leave to appeal to the Court of Appeal which are payable by Mr Underhill to both the New Zealand Police and Auckland Transport.

.....................................

Woolford J