Attorney-General v Siemer

[2022] NZCA 632

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA387/2022
 [2022] NZCA 632

BETWEEN	ATTORNEY-GENERAL Appellant REGISTRAR OF THE SUPREME COURT Second Appellant
AND	VINCENT ROSS SIEMER Respondent

Court:	Miller and Brown JJ
Counsel:	P J Gunn for Appellants Respondent in person
Judgment: (On the papers)	16 December 2022 at 10.00 am

JUDGMENT OF THE COURT

The application for an extension of time under r 43(2) of the Court of Appeal (Civil) Rules 2005 to file a case on appeal and apply for the allocation of a hearing date is granted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

The application

1. By notice of appeal filed on 3 August 2022 the first and second appellants appeal[1] against interlocutory orders made by the High Court in a judgment dated 5 May 2022, namely an order consolidating Attorney-General v Siemer[2] with Siemer v Registrar of the Supreme Court[3] (the consolidation order) and orders ruling inadmissible several items in the Attorney-General’s bundle of documents (the evidence orders).[4]

   [1]Pursuant to leave granted on 19 July 2022:  Siemer v Registrar of the Supreme Court [2022] NZHC 1724.

   [2]Attorney-General v Siemer CIV-2021-404-1955.

   [3]Siemer v Registrar of the Supreme Court CIV-2021-485-177.

   [4]Attorney-General v Siemer [2022] NZHC 917.

2. On 3 November 2022 the first appellant filed an application for a two-week extension of time in which to comply with r 43(1) of the Court of Appeal (Civil) Rules 2005 by filing the case on appeal and seeking an allocation of a hearing date.  The grounds for the application are:

   ·     that both counsel previously assigned to this matter have now left the Crown Law Office and assigned counsel has had other recent pressing commitments;

   ·     that the limited extension sought will not prejudice the respondent or inconvenience the Court; and

   ·     that is it is in the public interest that an appeal be heard against her Honour’s judgment.

3. On 9 November 2022 the respondent filed a memorandum in opposition to the application for an extension of time.  In summary the grounds of opposition are:

   (a)the respondent is suffering significant and on-going prejudice by the delay in the progress of the proceedings;

   (b)the prejudice needs to be recorded by this Court as extraordinary because it includes a stay of two proceedings; and

   (c)the prejudice of further delay is part of a pattern of injustice which is plainly an abuse of this Court’s processes.

4. With particular reference to the explanation proffered for the non-compliance with r 43(1) within the prescribed period, the respondent contended that the excuse was weak and insufficient to grant the extension sought, stating:

   The Attorney-General would have this appellate court believe that, despite 5 months to put together the Case on Appeal, two lawyers leaving Crown law was unexpected, last minute and that these lawyers – who are still practicing without interruption – were unavailable to complete this rudimentary task on time.  Again, this is an interlocutory appeal.  Everything revolves around a timely advancement simply to be afforded the right to appeal.

   (Emphasis in original.)

Relevant principles

1. As this Court explained in Yarrow v Westpac New Zealand Ltd[5] the decision of the Supreme Court in Almond v Read, although concerned with r 29A of the Rules, not r 43, applies to any interlocutory application for an extension of time where there is a right of appeal.[6]

   [5]Yarrow v Westpac New Zealand Ltd [2018] NZCA 601 at [4].

   [6]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.

2. The ultimate question when considering the exercise of the discretion to grant or decline an extension of time is what the interests of justice require.  Factors identified as likely to require consideration include:[7]

   (a)the length of the delay;

   (b)the reasons for the delay;

   (c)the conduct of the parties, particularly of the applicant;

   (d)any prejudice or hardship to the respondent or to others with a legitimate interest in the outcome; and

   (e)the significance of the issues raised by the proposed appeal, both to the parties and more generally.

   [7]At [38].

3. While the Court recognised that the merits of an appeal may, in principle, be relevant to the exercise of the discretion to extend time, a decision to refuse an extension of time based substantially on that ground should be made only where the appeal is clearly hopeless.  The lack of merit must be readily apparent.[8]

Discussion

[8]At [39(c)].

1. In the present case the period of the extension sought and hence the delay is comparatively short.  The first appellant filed the case on appeal and applied for the allocation of a hearing date on 17 November 2022, that is within the period of the two‑week extension sought.

2. While the respondent is highly critical of the reason advanced for the extension, we recognise that even organisations of substantial size are dependent upon the availability of their personnel.  We do not consider that the scenario which gives rise to the present application is of so little merit or worthy of reproof as to warrant a refusal of the application for an indulgence which is suitably confined.  We are unable to see that there would be any substantial prejudice or hardship for the respondent arising from the slippage of two weeks in compliance with the steps required by r 43.

3. Finally as Cooke J recognised in the leave judgment, on the face of it the Attorney-General has a strongly arguable case on appeal.[9]  Mr Gunn submits for the appellants that the evidence orders were contrary to established authority about the treatment of reasons for judgment as a public record that the Court is entitled to take judicial notice of without any independent evidentiary verification. 

   [9]Siemer v Registrar of the Supreme Court, above n 1, at [10].

4. Weighing the Almond v Read considerations, we consider that the interests of justice warrant the grant of the short extension sought. 

Result

1. The application for an extension of time under r 43(2) is granted.

Solicitors:
Crown Law Office, Wellington for Appellants