Prescott v Auckland Transport [2014] NZHC 228 (20 February 2014)

Last Updated: 5 March 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-404-004717 [2014] NZHC 228

BETWEEN PETER RICHARD PRESCOTT Applicant

AND AUCKLAND TRANSPORT Respondent

Hearing: 19 February 2014

Appearances: Appellant in Person

D Hughes for the Respondent

Judgment: 20 February 2014

_{[RESERVED] JUDGMENT OF WYLIE J}

This judgment was delivered by Justice Wylie on 20 February 2014 at 4.00 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

_Date:

PRESCOTT v AUCKLAND TRANSPORT [2014] NZHC 228 [20 February 2014]

Introduction

[1] Mr Prescott seeks leave to appeal out of time a judgment given by Judge BA Gibson in the District Court at Auckland on 25 June 2013.

Procedural Matters

[2] Mr Prescott has referred in his application to r 20.3(6) of the High Court Rules. As noted by the respondent, Auckland Transport, in its notice of opposition, Mr Prescott is in error. Judge Gibson’s decision was open to appeal pursuant to s 72 of the District Courts Act 1947. Pursuant to r 20.4(2)(b), any appeal was required to be filed within 20 working days after the decision appealed against is given. No appeal was filed within that time. Pursuant to r 20.4(3), the court, by special leave, can extend the time prescribed for appealing if the enactment that provides the right of appeal either permits the extension, or does not limit the time prescribed for bringing the appeal. This provision applies, because the District Courts Act does not limit the time prescribed for bringing an appeal. Nothing, however, turns on this minor error.

[3] Mr Prescott, in his oral submissions, argued that an affidavit filed in support of the notice of opposition by a Pratistha Gautan was “invalid”, that it ought not to be accepted by the Court, and that the notice of opposition was accordingly void, because it has no evidential basis. I observe as follows:

(a) Ms Gautan is a solicitor employed by Auckland Transport’s solicitors, Kensington Swan. She recorded that she was authorised to swear the affidavit on its behalf, and that she had knowledge of the matters to which the affidavit related. She annexed copies of documents filed in related bankruptcy proceedings between Auckland Transport and Mr Prescott, and a copy of the judgment of the District Court;

(b) Mr Prescott argued that the affidavit failed to comply with the Oaths and Declarations Act 1957, and with various provisions contained in the High Court Rules – namely rr 9.73, 9.76 and 9.82. I cannot see that there is anything in any of the various arguments

advanced by Mr Prescott. I do not, however, intend to lengthen this judgment by giving detailed reasons for this observation for the reason which follows;

(c) Nothing turns on whether or not Ms Gautan’s affidavit is admitted.

Her affidavit did no more than exhibit various documents. Both the District Court Judge’s decision, and the papers filed in the bankruptcy proceedings – CIV 2014-404-3958, are in the public domain in any event.

I do observe that it is a matter of concern that Mr Prescott did not file any formal application in regard to this matter. Nor, insofar as I am aware, did he give notice that the argument was to be made to Auckland Transport.

[4] This leads on to a further matter of concern. On 3 December 2013, Katz J directed Mr Prescott to file his submissions in support of the application for leave to appeal out of time, three working days prior to the hearing. She also required Auckland Transport to file its submissions one working day prior to the hearing. No submissions were received from either party. Mr Prescott sought to justify this by claiming that his computer had been corrupted by a “worm”, and that he had lost all of his computer records. Mr Hughes, appearing for Auckland Transport, could offer no proper explanation for Auckland Transport’s failure to file its submissions. It goes without saying that it is not for the parties to litigation to ignore court orders. If, for some reason, a party is unable to comply with a court direction, then that party should advise the court, and seek that the direction be varied. If parties can agree on a substituted timetable, then a consent memorandum can be filed. Where parties take matters into their own hands and ignore timetable orders, they can expect that the consequences will be visited on them by way of a costs award, or alternatively, unless orders.

The Application to Extend Time

[5] An extension of time is an indulgence, and it is within the discretion of the court. It cannot be expected that an extension will be granted as a matter of course. A proper explanation for any delay should be provided by way of affidavit, and the

party seeking an extension can anticipate that an award of costs will be made against him or her, unless the application is unreasonably opposed.¹

[6] In considering whether to extend time, it is relevant to consider the reason for the delay, the length of the delay, and the extent of any prejudice. A court being asked to grant an extension of time will frequently consider the merits of the proposed appeal, and consider whether the grounds advanced are “hopeless”. The overall test is whether any extension is in the interests of justice.²

Background Facts

[7] On 27 March 2012, Mr Prescott parked his car illegally in Central Auckland. He received a parking ticket from a traffic warden. Mr Prescott saw the traffic warden and approached him, waved the traffic ticket before him, and demanded to know why the infringement notice had been issued. He queried what legislation the traffic warden had purported to rely on in issuing the ticket. Mr Prescott behaved aggressively, yelled and swore, and stood in front of the traffic warden, blocking his way.

[8] The traffic warden pressed the emergency assistance button on his radio transmitter. He requested police assistance from the communications operator who received the call.

[9] The communications operator thought that he heard the traffic warden say that a knife had been pulled. He could hear Mr Prescott’s voice in the background, and it seemed to him that Mr Prescott was agitated, accusatory, and aggressive. The communications operator contacted the police. He told them that a knife was involved. They attended the incident within a short time, in force, from two directions, and in separate vehicles.

[10] The traffic warden immediately informed the police that a knife was not involved, and then pointed out Mr Prescott to the police. At that stage, Mr Prescott

_{was some 30–40 metres away. Mr Prescott was spoken to by the police officers, and}

¹ _{McGechan on Procedure, High Court Rules (looseleaf ed, Thomson Reuters) at [HR20.4.02].}

² My Noodle Ltd v Queenstown Lakes District Council [2009] NZCA 224; (2009) 19 PRNZ 518 (CA) at [19]–[23].

issued with a warning. He was not arrested. Nor was he detained in anything other than an incidental way.

[11] Mr Prescott did not let the matter rest. He brought proceedings against Auckland Transport. He alleged battery by the police officers who attended, intentional infliction of emotional distress, breach of ss 107 and 115 of the Crimes Act 1961, breach of ss 21 and 24(a) of the New Zealand Bill of Rights Act

1990, defamation, malicious falsehood, and deceit. He sought damages.

The Judge’s Decision and Subsequent Events

[12] Judge Gibson accepted the evidence of the traffic warden and the communications officer. He noted that the communications officer made a mistake. The Judge observed that no evidence was called by Mr Prescott to support his assertion that he had been subjected to battery by the police, other than his own affidavits. He accepted that Auckland Transport was subject to the New Zealand Bill of Rights Act. Nevertheless, he concluded that the issue of a traffic infringement notice was not an offence, and accordingly, that the Bill of Rights Act was not engaged because s 24 is concerned with the rights of persons charged. He commented that Mr Prescott was not charged with an offence by Auckland Transport. He noted that Mr Prescott was never under arrest or detained and that there was no search or seizure. He further noted that there was no intentional infliction of emotional distress. He observed that the defendant was Auckland Transport, and that there was no claim against the police. He considered that the claim for defamation could not succeed, because the communications officer told the police that a knife was involved honestly, and in the belief that that is what he heard. He held that Auckland Transport could therefore rely on the defence of qualified privilege. Similarly, he held that the causes of action alleging malicious falsehood and deceit failed. The Judge found that there was no evidence that Mr Prescott suffered any damage as a result of the events which occurred, and he held that all of his claims must fail. Judge Gibson held that Auckland Transport was entitled to costs on a 2B basis.

[13] Subsequently, those costs were fixed in the sum of $9,312.50, and an order in that regard was sealed on 24 July 2013.

[14] Auckland Transport then commenced proceedings seeking to recover that debt. Mr Prescott failed and/or refused to pay it, and bankruptcy proceedings were commenced by Auckland Transport in August 2013. Those proceedings are currently stayed, awaiting the outcome of this application, and any appeal which may result.

Analysis

[15] I consider first, the length of the delay.

[16] Here, Judge Gibson’s decision issued on 25 June 2013. The application for leave to appeal out of time was filed on 1 November 2013. The delay is a little over four months. That is not a short delay, but it is not, of itself, particularly significant.

[17] I now turn to the reasons for the delay.

[18] In an affidavit filed in support of the application, Mr Prescott stated as follows:

That the Affiant is out of time to file an appeal because he attempted to save the embarrassment and time associated with a judicial review on the grounds of a conflict of interest and bias by Judge B A Gibson did conditionally accepted the Court Order and then serve copies of the conditional acceptance on the seven interested parties being; Sir Jerry Mateparae, David Rutherford, Judith Collins, Chester Borrows, Judge B A Gibson, Helen Richlieva and R B Lange giving those interested parties the opportunity to voluntarily correct the error privately without the need to involve the Court.

He then goes on to state that he only received a response from the Human Rights

Commission, who said that it was barred by statute from intervening.

[19] The reason advanced by Mr Prescott for the delay is spurious. There is no such thing as the “conditional acceptance” of a judgment. A judgment speaks as from the time it issues. The suggestion that an extension of time should be granted

because the unsuccessful party wished to allow other persons, who have no ability to

do so, to “correct” an alleged error in the judgment, is flawed.

[20] I now turn to the conduct of the parties.

[21] Auckland Transport has sought to enforce the costs order obtained by it. The application for leave was only filed after the bankruptcy proceedings were instituted. It should have been clear to Mr Prescott from the outset that Auckland Transport intended to enforce the judgment, and either the appeal should have been brought within time, or the application for leave should have been brought much more promptly. Mr Prescott’s claim that he was prepared to “conditionally accept” the judgment, appears to amount to nothing more than “putting his head in the sand” in the hope that Auckland Transport might choose not to enforce the costs order in its favour.

[22] I accept that there has been prejudice to Auckland Transport, albeit that I do not consider that prejudice is particularly significant. Auckland Transport was entitled to seek to enforce the costs order. It is prejudiced by the fact that it has not been able to do so as a result of the present application.

[23] I have considered briefly the prospective merits of Mr Prescott’s proposed

appeal. In essence, he appears to be alleging two things:

(a) That Parliament has not addressed concerns raised by the United Nations Human Rights Committee in 1995. According to Mr Prescott, the Committee expressed concern about the absence of express provision conferring remedies on those whose rights under the New Zealand Bill of Rights Act had been violated;

(b) That Judge Gibson was in some way biased.

[24] I cannot see that either of those grounds have any prospect of success. The current legislation must be interpreted as it stands. Parliament’s alleged failure to put in place legislative provisions is not a ground which could succeed on any

appeal. Further, there is not a shred of evidence to suggest bias by Judge Gibson. The allegation of bias appears to be nothing more than frustration driven by the fact that Mr Prescott disagrees with the judgment which was issued against him. Insofar as I can glean, Judge Gibson has done no more than apply the law as he considers it to be. That is not, and can never, amount to bias.

[25] Finally, I have considered whether the prospective appeal raises any issue of public importance. I cannot see that it does. Mr Prescott’s claim failed on the facts, and on the pleadings which he put before the Court. His claims seem to me to be baseless, and I cannot see that they raise any issue of public importance at all.

[26] Consequently, I decline to grant Mr Prescott leave to appeal out of time. The stay of the bankruptcy proceedings is lifted.

Costs

[27] Normally, in cases of this kind, costs would follow the event and Auckland Transport would be entitled to costs on a 2B basis. However, as I noted above, Auckland Transport, for no good reason, failed to comply with a timetable order put in place by the Court. Accordingly, I reduce the costs it is entitled to by 50 percent.

[28] Auckland Transport is entitled to recover 50 percent of its costs, assessed on a 2B basis, together with its reasonable disbursements. If there is any disagreement

_{as to the quantum of disbursements, the same is to be referred to the Registrar.}

Wylie J