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Young v Police and ors [2007] NZCA 339 (8 August 2007)

Court of Appeal of New Zealand

Young v Police and ors [2007] NZCA 339 (8 August 2007)

Last Updated: 19 September 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA273/06

[2007] NZCA 339

BETWEEN

AND

AND

AND

AND

AND

AND

AND

AND

DAVID JOHN YOUNG Applicant

NEW ZEALAND POLICE First Respondent

LAND TRANSPORT SAFETY
AUTHORITY
Second Respondent

THE DISTRICT COURT Third Respondent

THE HIGH COURT OF NEW ZEALAND Fourth Respondent

DENNIS ROBERTSON Fifth Respondent

BRIAN KENNETH STUART HAWKINS Sixth Respondent

STEWART EDWARD GUY Seventh Respondent

JOHN WILLIAM DOHERTY Eighth Respondent

CA274/06

AND BETWEEN

AND

DAVID JOHN YOUNG Applicant

LAND TRANSPORT SAFETY
AUTHORITY
Respondent

DAVID JOHN YOUNG V NEW ZEALAND POLICE And Ors CA CA273/06 [8 August 2007]

Court: William Young P, Glazebrook and Wilson JJ

Counsel: Applicant in person

P J Shamy and A M Toohey for First to Seventh

Respondents in CA273/06 and Respondent in

CA274/06

S J Hembrow for Eighth Respondent in CA273/06

Judgment (on the papers) 8 August 2007 at 4pm

JUDGMENT OF THE COURT

A Applications for leave to appeal refused.

B Applicant to pay costs to the First to Seventh Respondents in the total sum of $500.

REASONS OF THE COURT

(Given by Wilson J)

Introduction

[1] The applicant, Mr Young, seeks special leave to appeal to this Court from two decisions of Randerson J, Chief High Court Judge, each delivered on 29 September 2006.

[2] In the first of these judgments (now reported at [2007] 2 NZLR 382), Randerson J dismissed Mr Young's application for judicial review of a decision of Associate Judge Christiansen on 8 March 2005 striking out Mr Young's statement of claim against the eight respondents to CA273/06.

[3] In the second judgment, Randerson J dismissed an appeal by Mr Young against a judgment of Judge MacAskill upholding a decision of the Land Transport Safety Authority ("the LTSA"), the respondent to CA274/06, suspending and

revoking an endorsement on a licence of Mr Young and prohibiting him from driving a vehicle in a transport service, other than a rental service.

[4] There are therefore two applications before us, the first an application under s 26P(1AA) of the Judicature Act 1908 (CA 273/06) and the second an application under s 46(1) of the Transport Services Licensing Act 1989 (CA 274/06).

[5] The first of these applications relates to what we have referred to as the first judgment of Randerson J and the second application to the second judgment.

CA273/06

Background

[6] On 29 October 2004 Mr Young filed a statement of claim in the High Court naming as defendants the present eight respondents: the Police, the LTSA, the District Court, the High Court, Mr Doherty (an employee of the Police) and Messrs Robertson, Hawkins and Guy (employees of the LTSA). Mr Young had previously been involved in a number of incidents that had culminated in his being prosecuted by the Police and the LTSA. All but one of the incidents that led to these proceedings related to Mr Young's former occupation as a taxi driver. The LTSA has now revoked the passenger service endorsement on Mr Young's driving licence.

[7] Mr Young's original statement of claim detailed seven causes of action. He sought either judicial review of decisions made by the various respondents or claims for compensation and/or exemplary damages in respect of alleged breaches of the New Zealand Bill of Rights Act 1990.

[8] Associate Judge Christiansen stuck out the proceedings in the Christchuch High Court on 8 March 2005, on the application of the respondents. While acknowledging that the Court should assist self-represented litigants where possible (Mr Young was not represented by counsel), he found that Mr Young's statement of claim was not capable of being reworked into an acceptable form.

[9] Mr Young appealed against that decision initially to this Court, but was redirected to the High Court for want of jurisdiction: Young v Police [2006] NZCA 111; [2007] NZAR 92 (CA). This Court confirmed at that time, with Mr Young's acceptance, that his claim was grounded in s 27 of the Bill of Rights rather than in the Judicature Amendment Act 1972. As such, Associate Judge Christiansen was acting within the Court's jurisdiction when he struck out Mr Young's claim.

[10] The review came before Randerson J on 18 September 2006, along with the associated appeal brought by Mr Young against the decision of the District Court dismissing Mr Young's appeal against the decisions of the LTSA suspending and revoking his passenger service endorsement. The review and the appeal were heard simultaneously by Randerson J in September 2006 and correspond with the two sets of pleadings filed with the present application.

[11] On 29 September, Randerson J dismissed both appeals after considering them by way of rehearing. He acknowledged that the jurisdiction to strike out must be exercised sparingly and with care, but agreed with the Associate Judge that the pleadings were incapable of being amended in any way that would make them tenable.

[12] In Mr Young's first cause of action, he sought exemplary damages for defamation in respect of information disclosed by the Police to Child, Youth and Family Services. However, the pleadings gave no detail of the material alleged to have been disclosed, no indication of how or why the disclosed information was untrue or defamatory, and no particulars of the damages claimed. Randerson J categorised this cause of action as so inadequate that it was not capable of repair, and found that it had no prospect of success and was an abuse of process.

[13] Mr Young's second cause of action was a claim of damages of $3.75 million for lost income plus a further $15,000 per week in respect of alleged threats by the Police to lay a charge of theft against him unless he returned another taxi driver's licence to that driver. Mr Young had established a regime under which he would pay for the initial training of taxi drivers and then collect a proportion of their income. If they failed to pay him according to that agreement, they were to forfeit their licences

to him. Randerson J found that Mr Young's claim relied on s 27 of the Bill of Rights in seeking a ruling that the activities of the Police were "unlawful, unjust and outside the jurisdiction to interfere with the lawful civil agreement". Randerson J found that the Police had made no determination in this instance that might be the subject of review, and that s 27 did not confer any separate power on the Court to give a ruling of the kind sought nor any entitlement to damages.

[14] The third cause of action concerned a fine imposed by Justices of the Peace who had in January 2001 found Mr Young guilty of breaching s 37(3) of the Transport Services Licensing Act and r 12 of the Third Schedule to that Act. In September 2001, John Hansen J dismissed Mr Young's appeal against that decision. His application to the High Court for judicial review challenged the jurisdiction of the Justices of the Peace to impose a fine at the level that they did ($200 and costs of $130).

[15] The remaining causes of action were found to be untenable because they either amounted to a collateral attack on matters already dealt with fully by the Courts, sought relief in reliance on s 27 of the Bill of Rights that was not available under that section, or amounted to a claim that s 48 of the Crimes Act 1961 (self defence against assault) should act as a justification for actions where no assault had been alleged.

[16] Randerson J dismissed the application for review, with the consequence that the statement of claim was struck out in its entirety. The Judge ruled that the respondents were entitled to costs, and asked for costs memoranda to be filed.

[17] In order to appeal to this Court against the decision of Randerson J, Mr Young requires either the leave of the High Court or, if refused, the leave of this Court. Mr Young applied to the High Court for leave to appeal late last year and Randerson J declined leave on 21 November 2006. In doing so, he found that the matters in issue might be of private importance to Mr Young but that there were no issues of law or fact which might be capable of serious or bona fide argument that would warrant this Court's consideration. Randerson J also made costs orders against Mr Young on the application for leave.

Summary of submissions for the applicant

[18] Mr Young's submissions in support of his applications for special leave to appeal are essentially that:

(a) The alleged interference by the Police with his private
arrangement with taxi drivers caused him to lose a significant source
of income. The effect of this was more serious than if Mr Young had
been made bankrupt, which constituted a matter of such private
importance that the Courts should intervene. Mr Young argues that
this satisfies the threshold test for granting special leave to appeal:
Snee v Snee [1999] NZCA 252; [2000] NZFLR 120 (CA), Waller v Hider [1998] 1 NZLR
412 (CA).
(b) Section 48 of the Crimes Act 1961 creates an absolute right to
use force in defence, this right is protected by the Bill of Rights, and
the Bill of Rights is supreme law that must be followed by the
judiciary. Mr Young claims that this Court's decision in R v Kneale
[1998] 2 NZLR 169 (CA) shows that s 48 is not confined to
allegations of assault.
(c) Because Randerson J considered the strike out application by
way of rehearing, Mr Young has only been heard by one level of
Court, which breaches his right to natural justice under s 27 of the Bill
of Rights.
(d) Section 27(2) of the Bill of Rights creates a right to apply for
judicial review of decisions of the Courts, and it is not an abuse of
process to exercise that right. He cites Baigent's Case [1994] 3 NZLR
667 as authority for the proposition that the judiciary are subject to the
Bill of Rights.
(e) Justices of the Peace do not have the power to deal with
summary offences, which include setting penalties. Allowing them to
do so contravenes the International Covenant of Civil and Political
Rights which provides that people have the right to be tried by a
competent tribunal.
(f) Judges have a responsibility to "make some effort" to repair
deficiencies in statements of claim, and that this could have been done
in Mr Young's case but was not.
(g) The alleged breaches entitle Mr Young to compensation under
the Bill of Rights.

Summary of submissions for the respondents

[19] Ms Toohey submitted that Mr Young has not advanced any question capable of bona fide serious argument or a question of public or private interest of sufficient importance to warrant the institutional cost of further appeal. The issues raised by Mr Young have, she points out, already been extensively litigated in the District Court and the High Court.
[20] Mr Hembrow adopted and supported these submissions. Discussion

[21] While we agree with Mr Young that the extensiveness of prior litigation can never, without more, act as a bar to further appeal, we find Mr Young's submissions to be otherwise without merit. He has not put forward any question of sufficient importance to justify a further substantive appeal. Randerson J considered Mr Young's submissions in his careful and comprehensive judgment delivered on 29 September 2006, and we agree with his reasons for dismissing Mr Young's application for judicial review. We can therefore address briefly the submissions of Mr Young in this Court.

Question of importance justifying further appeal

[22] Mr Young alleges that the Police threatened to charge him with theft unless he returned another taxi driver's licence to him, and that this has led to the collapse of a significant money-making scheme that he had developed. The loss of income may be of great personal importance to Mr Young, but he has not formulated any question for us that might be of wider significance. There is no actual action or determination of the Police that he can point to as having ended his scheme. The question of the scheme's legality has not been raised, and indeed could not be raised on the current facts.

Right to use force in defence

[23] The right to use force in defence of oneself or another is conferred by s 48 of the Crimes Act. It arises purely as a matter of justification or excuse in the context of a charge of assault. It is not possible for the words in s 48 to be interpreted as providing an absolute right to use force against others. Such an interpretation would be entirely inconsistent with the Act's scheme and purpose. Although Mr Young cites Kneale in support of his submission that s 48 applies beyond assault allegations, he appears to have overlooked that the discussion of self-defence in that case was in the context of a charge of assault.

Breach of natural justice, due to only being heard by one Court

[24] Mr Young cannot realistically claim to have had recourse to only one tribunal over the matters raised in this appeal.

Right to apply for judicial review of Court decisions under s 27 of the Bill of Rights

[25] We agree with Randerson J's conclusion that it would be anomalous for the decisions of the higher Courts to be subject to judicial review. Section 27 of the Bill of Rights does not create a new route of appeal from High Court decisions that is additional to existing statutory rights of appeal.

Jurisdiction of Justices of the Peace to impose fines

[26] We agree with Randerson J that the Justices of the Peace were acting within jurisdiction, and can find nothing else in Mr Young's submissions in support of his claim that they were not competent to determine the charges against him.

Judges' responsibilities to repair deficient statement of claim

[27] While the Courts do assist lay litigants as far as is practicable, their responsibility does not extend to a duty to represent such litigants. More particularly, there cannot possibly be any duty to reformulate the submissions of an unrepresented party to enable that party to succeed.

Right to compensation under the Bill of Rights

[28] This Court said in Baigent's Case that the courts may order compensation payments for breaches of the Bill of Rights when other remedies would be ineffective. Compensation can be a remedy, but is not a right. The courts must find a breach of rights before the question of compensation even arises. For the reasons we have given there is in this case no breach to which compensation might be attached. This argument is without merit.

CA274/06

[29] Section 46(1) of the Transport Services Licensing Act, under which this application is brought, confers on this Court the power to grant special leave to appeal on a question of law to a party to an appeal to the High Court under s 45.

[30] Mr Young had sought to appeal under s 45 on the grounds that the District Court Judge had erred in not permitting him to re-argue issues which had been determined against him in previous criminal proceedings and, in particular, to litigate again the correct interpretation of ss 42 and 48 of the Crimes Act 1961 and the application of s 27(1) of the Bill of Rights.

[31] These issues had been resolved in previous proceedings, to which Mr Young was a party, by judgments of the High Court and this Court.

[32] The District Court Judge considered that he was bound by these judgments and that, in any event, it would be an abuse of process to use the present proceedings to make a collateral attack on the outcome of the previous proceedings.

[33] Randerson J considered that these conclusions were plainly correct. So do we.

[34] More generally, we can see nothing in the submissions of Mr Young to found an arguable question of law, let alone one having the general or public importance required to justify the grant of special leave by this Court.

Result

[35] Mr Young's applications for special leave to appeal to this Court are refused.

Costs

[36] The First to Seventh Respondents are entitled to costs.

[37] Because the applications were determined on the papers, without the necessity for a hearing, we fix those costs at a total sum of $500.

[38] The eighth respondent adopted without elaboration the submissions of the first to seventh respondents. We therefore make no order for costs in respect of the eighth respondent.

Solicitors:
Crown Solicitor, Christchurch for First to Seventh Respondents in CA273/06 and Respondent in
CA274/06
Nick Rout, Christchurch for Eighth Respondent in CA273/06