Commissioner of Police v Burgess and Another

• Jurisdiction: New Zealand
• Judge: O'Regan P
• Judgment Date: 19 July 2013
• Neutral Citation: [2013] NZCA 317
• Docket Number: CA448/2011
• Court: Court of Appeal
• Date: 19 July 2013

Between

Commissioner of Police

Appellant

and

Robin Adrian Burgess and Llannys Gwen Burgess

Respondents

[2013] NZCA 317

Court:

O'Regan P, Ellen France and White JJ

CA448/2011

IN THE COURT OF APPEAL OF NEW ZEALAND

Application by respondents for costs under r53 Court of Appeal (Civil) Rules 2005 (the Civil Rules) (costs at discretion of Court) — Commissioner of Police had appealed against the dismissal by the High Court of an examination order under the Criminal Proceeds (Recovery) Act 2009 — appeal filed as if it was a civil appeal — Commissioner had paid $5,560 as security for costs — Court of Appeal (CA) ruled it did not have jurisdiction under s66 Judicature Act 1908 1908 (appeals from judgments and orders of the High Court) to hear the appeal as applications for examination orders were criminal proceedings — whether the Civil Rules applied given that the application for an examination order appeal was held to be a criminal matter — whether the fact that the CA had not made any order for costs in its jurisdiction decision was determinative.

Counsel:

D G Johnstone for Appellant

A G Speed for Respondents

JUDGMENT OF THE COURT

• A The appellant must pay to the respondents costs and disbursements totalling $5,560.

• B We authorise the Registrar to pay the sum held as security for costs to counsel for the respondents.

REASONS OF THE COURT

(Given by O'Regan P)

Introduction

1 The Commissioner of Police appealed to this Court against a decision of Asher J dismissing an application for an examination order under the Criminal Proceeds (Recovery) Act 2009 (CPRA) against the Burgesses.

2 The appeal was filed on the understanding that it was a civil appeal. The Commissioner paid $5,560 as security for costs in accordance with r 35 of the Court of Appeal (Civil) Rules 2005 (the Civil Rules).

3 On 25 September 2012, this Court held that it did not have jurisdiction to hear the appeal. 1 The basis of that decision was that applications for examination orders are criminal proceedings, and therefore s 66 of the Judicature Act 1908 does not provide a jurisdictional foundation for an appeal against the dismissal of such an application.

Costs application

4 Counsel for the respondents now seeks costs under r 53 of the Civil Rules. The Commissioner opposes the award of costs on the basis that the Civil Rules are “of limited application”, given that this Court held that the decision dismissing the application for an examination order appeal was a criminal matter. The Commissioner also argues that the Court made no order for costs in its 25 September 2012 judgment and says that is determinative. We have dealt with the costs application on the papers.

Do the Civil Rules apply?

5 The threshold issue is whether the Civil Rules apply to the appeal. Perhaps surprisingly, given our decision that the appeal itself was a criminal matter to which s 66 of the Judicature Act does not apply, we consider that the Civil Rules do apply, for the following reasons:

• (a) The Court of Appeal (Criminal) Rules 2001 (the Criminal Rules) do not apply to the appeal. The Criminal Rules apply only to those types of proceeding listed in r 4 of the Criminal Rules. This appeal is not one of those types of proceeding.

• (b) The Civil Rules apply “to all proceedings of the Court, except proceedings to which the Court of Appeal (Criminal) Rules 2001 apply”. As the Criminal Rules do not apply, the Civil Rules do apply.

• (c) The Costs in Criminal Cases Act 1967 does not apply.

Reasons – further detail

6 Rule 4 of the Civil Rules states that:

4 Application of rules

(1) These rules apply to all proceedings of the Court, except proceedings to which the Court of Appeal (Criminal) Rules 2001 apply.

7 Therefore, the question to be answered is whether the Criminal Rules apply to this proceeding. If the Criminal Rules do not apply, then the Civil Rules will apply.

8 Rule 4 of the Criminal Rules stated (prior to their amendment to provide for the coming into force of the Criminal Procedure Act 2011):

4 Application of rules

• (1) These rules apply to—

  • (a) applications for leave to appeal under Part 13 of the [Crimes Act 1961]; and

  • (b) prosecutor appeals; and

  • (c) general appeals; and

  • (d) bail appeals; and

  • (e) summary proceedings appeals and applications for special leave...