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High Court of New Zealand Decisions |
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV 2005-404-3485
BETWEEN MICHAEL GREGORY
Plaintiff
AND THOMAS PATRICK JOSEPH GOLLAN
First Defendant
AND THE ATTORNEY-GENERAL
Second Defendant
AND JOHN BERNARD MARIE FURLONG
Third
Defendant
AND MILES EDWARD FINLAISON
SUTHERLAND
Fourth Defendant
AND NIGEL
JAMES TURNBULL
Fifth Defendant
Hearing: 29 June 2007
Appearances: C S
Henry and G Minchin for plaintiff
M Davies for defendants
Judgment: 4 July 2007
JUDGMENT OF ALLAN J
(APPLICATION FOR LEAVE TO APPEAL)
In accordance with r 540(4) I direct that the Registrar
endorse this judgment with the delivery time of 3.45 pm
on Wednesday 04 July 2007
Solicitors:
C S Henry, PO Box 616, Orewa 0946
M Davies, Meredith Connell, PO Box 2213, Auckland
GREGORY V GOLLAN AND ORS HC AK CIV 2005-404-3485 4 July 2007
[1] This
is an application for leave to appeal to the Court of Appeal from a
judgment of 19 February 2007, in which I dismissed the plaintiff's
application for
review of a decision of Associate Judge Doogue, delivered on 14 September 2006,
(reasons 21 September 2006). In my
judgment I upheld the decision of the Associate
Judge to grant an application by the defendants for an order directing that this
proceeding be heard by a Judge alone, pursuant to s 19A(5)(a) of the Judicature Act
1908.
[2] This proceeding was commenced
in the Manukau District Court on 3 October
2003. In it the plaintiff advances claims for assault and trespass, false arrest and
false
imprisonment, breach of the New Zealand Bill of Rights Act, malicious
prosecution, and misfeasance in public office. The proceeding
was transferred to
this court consequent on a direction given by a District Court Judge on 20 May 2005.
[3] The plaintiff's
claim relates to an incident on 24 June 2001, which resulted in
what the plaintiff says was his unlawful arrest and subsequent mistreatment
by the
police. He claims damages exceeding $200,000 in all. Different sums are claimed
against various defendants on some seven separate
causes of action.
Relevant principles
[4] The right of the plaintiff to seek leave to appeal from my judgment is
governed
by the provisions of s 26P(1)(1AA) of the Judicature Act. Section 26P
commences:
26P Review of, or appeals against, decisions
of Associate Judges
(1) Any party to any proceedings who is affected by any order or decision
made by an Associate
Judge in Chambers may apply to the Court to review
that order or decision and, where a party so applies in accordance with
the
High Court Rules, the Court--
(a) Must review the order or decision in accordance with the
High Court Rules; and
(b) May make such order as may be just.
(1AA) The determination
of the High Court on a review under subsection
(1) is final, unless the High Court gives leave (or the High Court refuses
leave, but the Court of Appeal gives special leave) to appeal from it to the
Court of Appeal.
[5] The principles
to be applied in determining the plaintiff's application are
those set out in Waller v Hider [1998] 1 NZLR 412, at 413, and Snee v Snee (1999)
13 PRNZ 609, at 612-613. The appeal must raise some question of law or fact
capable of bona fide and serious argument, in a case involving some
interest, public
or private, of sufficient importance to outweigh the cost and delay of the further
appeal. In the end, the guiding
principle must be the requirements of justice. Upon a
second appeal, the Court of Appeal is not engaged in the general correction
of error.
Its primary function is to clarify the law and determine whether it has been properly
construed and applied by the court
below. It is not every alleged error of law that is
of such importance, either generally or to the parties, as to justify the further
pursuit
of a matter which has already been twice considered and ruled upon by a court.
[6] Although s 26P(1AA) of the Judicature
Act post-dates both Waller v Hider
and Snee v Snee, the principles in those cases apply to the present application: Jew v
Jew (2003) 22 FRNZ 815 at [9], Payne v Attorney General [2005] NZFLR 846 at
[5].
[7] The correctness or otherwise of my decision of 19 February 2007, from
which the plaintiff now wishes to appeal,
is not of itself a matter relevant to the
determination of the question whether leave should be granted: Adams Bruce Ltd v
Frozen
Products Ltd (No.2) [1953] NZLR 310, 313; Green v Commissioner of
Inland Revenue (leave) (1990) 3 PRNZ 628; Commerce Commission v Bay of Plenty
Electricity Ltd HC WN CIV 2001-485-917 29 August 2005.
[8] In general, leave will less
readily be granted where a proposed second appeal
relates to an interlocutory matter which does not determine the rights and liabilities
of the parties: Orion NZ Ltd v Clapperton CA260/04 21 March 2005.
[9] Questions of cost and delay will be relevant to the exercise
of the discretion
to grant leave: Waller v Hider, Snee v Snee.
Jurisdiction
[10] In my judgment of 19 February 2007 I reviewed
the provisions of s 19A, and
considered and applied the leading authority: Guardian Assurance Co Ltd v Lidgard
[1961] NZLR 860. I considered also several other decisions of the Court of Appeal,
including in particular McInroe v Leeks [2000] 2 NZLR 721, which includes an
analysis of the application of s 19A(5) in the context of a claim for damages having
some similar features to
the present case.
[11] Mr Henry does not argue that I have wrongly identified the relevant
principles. Rather he argues that
I have misapplied them and reached the wrong
conclusion. Alive to the need to identify discrete questions which might qualify for
the grant of leave on Waller v Hider principles, Mr Henry laid out the following
questions:
a) Is it permissible in
determining an application under s 19A(5) of the
Act, to identify qualifying issues which are not in contest between
the
parties;
b) Whether the provisions of s 19A of the Act must be construed in
harmony
with the entitlement of every person, conferred by Magna
Carta, to have the lawfulness of his or her imprisonment
determined
by his or her peers;
c) Whether in determining an application under s 19A(5) the court must
have regard to the similarity, said to arise here, between central legal
and factual issues relating
to the arrest and detention of the plaintiff
on the one hand, and issues commonly encountered in criminal jury
trials on the other;
d) Whether difficulties relating to the proper assessment of
compensatory damages (including exemplary damages and the impact
of the Accident Compensation legislation)
can properly be taken into
account on an application under s 19A(5), having regard to the long
established
role of juries in assessing damages in civil cases.
[12] The foregoing questions, although advanced as propositions of law, are
in my
view (save for question 2) simply factors going to the exercise of the court's overall
discretion. It would not be right to
elevate them to the level of questions which
might of themselves support a successful application for the grant of leave.
[13]
Question 2 raises an issue which Mr Henry did advance at the earlier hearing
before me, but with nothing approaching the prominence
which he accorded it on the
hearing of the application for leave. His argument is that clause 39 of Magna Carta,
formerly part of
the common law but now expressly covered by s 3(1) of the
Imperial Laws Application Act 1988, ought to be taken to over-ride the
discretion
conferred by s 19A(5)(a), at least in cases where the plaintiff alleges unlawful
imprisonment by servants of the state.
In that respect Mr Henry pointed out that the
1988 Act post-dates s 19A(5). This argument was advanced with rather more vigour
at
the hearing than appeared in Mr Henry's written synopsis, where reference to
Magna Carta appeared in the section devoted to discretionary
factors.
[14] I am unable to accept that this proposition is capable of bona fide and serious
argument. Although Mr Henry took
me to the relevant provisions of Magna Carta,
he did not outline the detail of the argument he might run in the Court of Appeal if
leave were granted. He directed my attention to a number of statutory provisions in
other jurisdictions which provide for an automatic
right to trial by jury in cases
similar to the present proceeding, but that simply served to demonstrate that it was
and is open
to our Legislature to provide a statutory guarantee of trial by jury in
particular cases, if Parliament should see fit to do so.
The absence of such
provisions weighs heavily against his argument.
[15] I should add that Mr Henry sought to draw some
support from the recent
judgment of the Administrative Court of the Queen's Bench in Paul v Deputy
Coroner of the Queen's Household
[2007] EWHC 408 (Admin). In that case the
Court reviewed the decision of Lady Butler-Sloss to direct that a Coroner's inquest
be held without a jury.
The Court reversed that decision, referring the issue back to
Lady Butler-Sloss for reconsideration. In doing so, the Court said
that Lady Butler-
Sloss, in determining the scope of the forthcoming inquests, would need to take into
account as an important consideration
material to her discretionary decision, the
possible role of state agents. While that authority is of general interest, it was
underpinned
by express statutory provisions which are not relevant to the present
case, and on the wider discretionary point, did no more than
underscore a principle
which was carefully taken into account by Associate Judge Doogue, and by me, in
our respective judgments (see
for example [56] of my judgment).
Discretion
[16] Mr Henry's second argument was that I had wrongly identified, or failed to
identify, matters relevant to the exercise of my discretion, to the extent that the test
in Waller v Hider was met. In summary, he
referred to the four questions earlier
mentioned, and argued they amounted to qualifying errors, together with the
following:
a) An alleged failure by me to consider the possibility of directing that
certain legal questions be determined
by a Judge alone before trial;
b) The current level of public interest in alleged police misconduct;
c)
The vital constitutional importance of the right to trial by jury;
d) The seriousness of the alleged infringement
of the plaintiff's rights,
involving the invasion of his bedroom by the police in the middle of
the
night.
[17] Even if my decision was wrong (which I do not accept) the matters identified
by Mr Henry are not capable, in my opinion,
of elevating the case to one in which it
would be appropriate to grant leave. On a second appeal, the Court of Appeal is not
engaged
in the general correction of error. The threshold of requisite importance is
just not met. It is not suggested that I failed to identify
the appropriate jurisdictional
principles; it is simply argued that I failed to apply them correctly. In the
circumstances
of this case that is not enough.
[18] That conclusion is reinforced by certain further considerations. Matters of
cost and delay
both count against the success of the application. Awards of damages
in cases such as the present, tend to be relatively low: see
for example Ellison v L
[1998] 1 NZLR 416 at 419; Dunlea v Attorney General [2000] 3 NZLR 136 at [36].
[19] Mr Henry urged me not to place any great weight on the question of cost. He
argued that the plaintiff had a significant
prospect of recovering more than was
common in such cases, having regard to the seriousness of the claimed breaches.
However, Mr
Davies contended that the plaintiff would be unlikely to recover more
than about $50,000, in the event he succeeded at trial. I think
that whatever the
realistic range of likely awards might be, the cost of a further appeal, viewed against
the background of the substantial
costs which must inevitably have been incurred
already, is a factor to be taken into account.
[20] Then there is the question
of delay. The proceeding was commenced in 2003
and was to be heard last year. The trial was adjourned at a late stage following the
decision of the Associate Judge to grant the defendants' application for trial before a
Judge alone. If the current application is
granted, the ensuing appeal is unlikely to
be heard in the Court of Appeal until early next year. Irrespective of the outcome, a
trial in this court, whether by a Judge alone or before a jury, would be unlikely until
about mid-2008.
[21] As Mr Henry points
out, very little responsibility for the delays can be laid at
the plaintiff's door. Accepting that however, it cannot be said to
be in the interests
of justice, that there be a further delay of at least a year. These allegations have been
hanging over the heads
of the individual defendants for some years now. Their
professional reputations are at stake. Their interests are to be considered,
just as
much as those of the plaintiff.
[22] A further matter of relevance is the fact that the plaintiff's substantive rights
are not at stake. The argument is restricted to the appropriate mode of trial. If leave
is refused this trial will be before a
Judge alone, but an appeal will lie as of right
from the substantive judgment. I believe it is also relevant to bear in mind that
here
there are now concurrent judgments of this court. It is not a case in which the Court
of Appeal would be asked to resolve divergent
outcomes.
[23] Against these considerations is the plaintiff's desire, expressed in the
strongest terms, for trial by jury.
He has filed a late affidavit in which he expresses
himself to be disenchanted with his treatment at the hands of the state. To the
claimed misconduct of the police he adds various procedural delays in the courts
(including apparently the loss of certain documents
by the Court Registry earlier this
year), and the two judgments of this court which have denied him what he believes
to be his entitlement
to a trial by jury.
[24] I have no doubt that the question of mode of trial is of great importance to
Mr Gregory. His
tenacity in pursuing the issue is evidence enough of that.
However, in my view, the plaintiff's strongly expressed and genuine desire
for a jury
is not a matter which outweighs the other factors to which I have referred..
Result
[25] I am satisfied that the
grounds advanced by Mr Henry do not justify the grant
of leave. The plaintiff's application is therefore dismissed. The defendants
are
entitled to a single set of costs, having regard to the fact they were all represented by
Mr Davies. Counsel may file memoranda
if they are unable to agree as to quantum.
C J Allan J
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