IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CRI-2023-404-000169
[2023] NZHC 1517	

BETWEEN	WAYNE UNDERHILL
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	13 June 2023	
Appearances:	Appellant in person
N D Ward for Respondent	
Judgment:	16 June 2023	

JUDGMENT OF HINTON J

This judgment was delivered by me on 16 June 2023 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:	Kayes Fletcher Walker, Manukau

UNDERHILL v POLICE [2023] NZHC 1517 [16 June 2023]

[1]	Mr Underhill has filed a notice of appeal seeking to appeal a review determined by the Manukau District Court under s 106F of the Summary Proceedings Act 1957 (the Act).

[2]	He relies, amongst other things, on s 237 of the Criminal Procedure Act 2011, s 124 of the District Court Act 2016 and the Pacific Islanders Protection Act 1875.

[3]	The respondent submits that this Court has no jurisdiction to hear an appeal against a review determined under s 106F of the Act.

Background

[4]	Mr Underhill filed an application under s 78B of the Act to correct alleged irregularities in proceedings relating to infringement offences. The offences were:

(a)	exceeding 60 km per hour in a posted speed limit area; and

(b)	driver or occupant not wearing a seat belt.

[5]	Section 78B of the Act gives a District Court Judge or Registrar power to correct irregularities in proceedings for infringement notices.

[6]	Mr Underhill’s application under s 78B was declined by the Registrar at the Manukau District Court.

[7]	Section 106F of the Act provides that any person affected by an order or decision made by a Registrar under ss 78B or 78C of the Act, may apply to a District Court Judge for a review of the order or decision. On 23 March 2023, the District Court advised Mr Underhill that his application for review of the original s 78B decision was declined, noting:

After reviewing your application, a Judge at Manukau District Court has decided that the decision to decline your original Section 78B application was correct.

[8]	Mr Underhill now seeks to appeal the District Court Judge’s decision reviewing the Registrar’s decision.

Jurisdiction for appeal

[9]	The respondent submits that this Court has no jurisdiction to hear an appeal against a review of a Registrar’s decision made under s 106F of the Act.

[10]	Appeals against decisions of the District Court are governed by statute. There is no separate common law right of appeal.1

[11]	In Underhill v Police, a previous appeal brought by Mr Underhill’s son, Simon France J said:2

There is considerable authority confirming that a review decision of this sort is neither appealable under the general conviction appeal provisions (s 155 of the Summary Proceedings Act 1957), nor under s 72 of the District Courts Act 1947 (which is limited to civil matters).

[12]	This was upheld by the Court of Appeal when refusing leave to bring a second appeal.3

[13]	Mr Underhill says he does not accept that there can be no right of appeal just because none is provided for. He says there should be an express provision in the Act saying in precisely what circumstances no appeal can be made. That is however not the way the Act operates.

[14]	Mr Underhill relies on s 124 of the District Court Act 2016, and/or s 237 of the Criminal Procedure Act 2011 as mechanisms for the present appeal.4 However, s 124 of the District Court Act 2016 (formerly s 72 of the District Courts Act 1947) has no application in relation to an appeal against a District Court Judge’s review decision under s 106F of a criminal proceeding.5 Section 124 of the District Court Act provides:

124	General right of appeal

(1)	This Part applies to a decision of the court, other than a decision of a kind in respect of which an enactment other than this Act—

1	Rafiq v Auckland Transport [2022] NZHC 3552 at [31].
2	Underhill v Police [2014] NZHC 1367 at [10].
3	Underhill v New Zealand Police [2015] NZCA 116 at [8]-[9].
4	Appellant’s notice of general appeal, dated 6 April 2023.
5	Page v Ministry of Justice [2013] NZHC 1309 at [18] – [20]; Dunstan v Auckland District Court & Neill [2022] NZCA 477 at [34].

(a)	expressly confers a right of appeal; or

(b)	expressly provides that there is no right of appeal.

(2)	A party to a proceeding in the District Court may appeal to the High Court against the whole or a part of a decision made by the District Court in or in relation to the proceeding.

[15]	“Proceeding” is defined in s 4 of the District Court Act as “any application to the court for the exercise of the civil jurisdiction [emphasis added] of the court other than an interlocutory application”.

[16]	Section 237 of the Criminal Procedure Act 2011 provides for applications for leave for a second appeal against conviction, which as the respondent points out, this is not. Even if s 237 did apply here, to grant leave the Court would need to be satisfied that the appeal involved a matter of general and public importance; or a miscarriage of justice may have occurred, or may occur, unless the appeal is heard.6 That could not possibly be the case in the circumstances set out in this judgment.

[17]	I agree with the respondent that Mr Underhill’s additional argument that the District Court has no jurisdiction over him on Māori sovereignty grounds, must be rejected as legally unsound given the judgment of the Supreme Court in Wallace v R.7

[18]	I am satisfied that there is no justification for the appeal and it is dismissed on that basis.

[19]	The respondent does not seek costs but I note for the record that the Court of Appeal has previously awarded costs against Mr Underhill under s 8(5) of the Costs in Criminal Cases Act for an appeal which bears similarities to the present.8 In ordering costs the Court of Appeal noted:9

Although Mr Underhill may very well be sincere in his beliefs and genuine in his efforts to address what he considers to be an important issue, he has now taken up court resources to advance an argument that has been considered and rejected at least twice before. Arguments such as this, which Mr Underhill knows will fail, are an abuse of the court process and a waste of court resources.

6	A similar argument was advanced in Underhill v New Zealand Police [2017] NZHC 2148.
7	Wallace v R [2011] NZSC 10.
8	Underhill, Underhill, Underhill and Mokaraka v R [2014] NZCA 228.
9	At [12].

[20]	The respondent points out that Mr Underhill has now advanced appeals on related grounds as many as 16 times previously. These have each been unsuccessful. He has also represented family members in their own appeals of a similar nature.

[21]	The attempt to appeal in this case is a continued abuse of process. The file should be referred to the Executive Judge and the Appeals List Judge with a view to further action being taken to avoid ongoing time wastage by the courts.

Conclusion

[22]	Appeal dismissed for want of jurisdiction.

Hinton J