Douglas v Chief Executive of the Department of Corrections

[2023] NZCA 522

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA301/2023
 [2023] NZCA 522

BETWEEN	GLEN ANTHONY DOUGLAS Appellant
AND	CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Court:	Brown and Wylie JJ
Counsel:	A J Bailey for Appellant D J Perkins for Respondent
Judgment: (On the papers)	26 October 2023 at 11.30 am

JUDGMENT OF THE COURT

The application for an extension of time to appeal from the judgment [2016] NZHC 3184 is adjourned to the hearing of the appeal against the judgment [2023] NZHC 1085.

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REASONS OF THE COURT

(Given by Brown J)

Introduction

1. On 21 December 2016 Davidson J made a Public Protection Order (PPO) under the Public Safety (Public Protection Orders) Act 2014 (the Act) in respect of the applicant, Mr Douglas.[1]  The PPO took effect on 10 January 2017. 

   [1]The Chief Executive of the Department for Corrections v Douglas [2016] NZHC 3184.

2. The Chief Executive of the Department of Corrections is required by s 16 of the Act to apply for a review of the continuing justification of a PPO within five years of the order being made.  A review in respect of Mr Douglas’ PPO was conducted by Mander J who, in a judgment dated 8 May 2023, directed that the PPO remain in place.[2]  Mr Douglas has appealed that decision.[3]

   [2]Chief Executive of the Department of Corrections v Douglas [2023] NZHC 1085.

   [3]The filing number for this appeal is CA302/2023.

3. Mr Douglas has filed an application under r 29A of the Court of Appeal (Civil) Rules 2005 for an extension of time to appeal against the decision of Davidson J.  That application is the subject of this judgment.

The parties’ contentions

1. The parties have very different perspectives on the utility of an appeal from the judgment of Davidson J.  For the respondent, Mr Perkins contends that the issues raised by the proposed appeal are moot.  He submits that the extant order restricting Mr Douglas’ liberty is that made by Mander J who undertook a fresh assessment and reached his own conclusions uninfluenced by Davidson J’s decision.  He emphasises that Mander J’s order, which is said to supersede that made by Davidson J, is already the subject of an appeal to this Court as of right. 

2. Mr Bailey, for Mr Douglas, contends that that approach is plainly wrong.  He submits that Mander J did not make an order or attempt to do so.  Rather, his Honour issued a judgment which, given his findings as to the risk Mr Douglas presented, meant that as a matter of law the PPO continued.  On a proper analysis there was no superseding order.  Mr Bailey maintains that there is an important distinction between the operation of s 13 of the Act, which prescribes the statutory test for PPO applications, and s 18 which relates to reviews of PPOs.  He contends that the former involves a discretion while the latter does not.

3. That sharp difference in view in turn translates into a difference concerning the appropriate manner of determination of the r 29A application.  In his interlocutory application Mr Douglas stated that he was effectively seeking to combine his proposed appeal from the judgment of Davidson J with the appeal filed in respect of Mander J’s judgment.  However, Mr Bailey now submits that if the extension application is granted the appeal against the judgment of Davidson J should be heard and determined prior to the extant appeal against the judgment of Mander J.

4. Mr Perkins opposes the proposition that, if leave is granted, the appeals should be heard separately.  He makes the point that separate appeals would likely involve differently constituted panels of the court.  He further notes that, if the first appeal was dismissed, Mr Douglas would continue to be detained while awaiting a second fixture.

5. Mr Perkins proposes an alternative course whereby the question of leave to appeal from the judgment of Davidson J should be adjourned for determination by the panel hearing the appeal from the judgment of Mander J and that the parties should file submissions addressing both the issue of leave and the substance of the judgment of Davidson J.  While recognising that as an available option, Mr Bailey’s preference is for separate hearings of appeals from the two judgments.

Decision

1. The principles applicable to applications for an extension of time under r 29A were explained by the Supreme Court in Almond v Read.[4]  Several factors were identified as likely to require consideration including the length of the delay and the reasons for it.  However, the ultimate question when considering the exercise of the discretion is what the interests of justice require. 

   [4]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 80. See also Yarrow v Westpac New Zealand Ltd [2018] NZCA 601 at [4].

2. In the particular circumstances of this matter we do not consider that factors such as delay or the reasons for it are of much significance.  This Court is seized of an appeal against the 2023 judgment and the panel hearing that appeal will inevitably be better placed to determine whether, and to what extent, there is merit in also revisiting the 2016 judgment.

3. In our view the better course is to have a single hearing which avoids the risk of similar issues being determined by separate panels.  In these unusual circumstances we are attracted to the course proposed by Mr Perkins.  Consequently, we adjourn the application for an extension of time to appeal from the judgment of Davidson J to the hearing of the appeal against the judgment of Mander J. 

4. We direct that in addition to submissions concerning the judgment of Mander J the parties are to provide their submissions both on the question of an extension of time to appeal from the judgment of Davidson J and the substance of the proposed appeal.  In our view this course is calculated to secure finality in the shortest overall period of time.

Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent