Greer v Manager, Custodial Services, Auckland Prison

[2007] NZCA 204

IN THE COURT OF APPEAL OF NEW ZEALAND

CA102/06
[2007] NZCA 204

BETWEENALAN IVO GREER

Applicant

ANDMANAGER, CUSTODIAL SERVICES, AUCKLAND PRISON

First Respondent

ANDVISITING JUSTICE AT AUCKLAND PRISON

Second Respondent

Hearing:15 May 2007

Court:Chambers, John Hansen and Priestley JJ

Counsel:Applicant in person

P K Hamlin for First Respondent

Judgment:24 May 2007     at 9.30 am

JUDGMENT OF THE COURT

The application for leave to appeal out of time is dismissed. 

REASONS OF THE COURT

(Given by Chambers J)

Application for leave to appeal out of time

[1]       Alan Greer brought a civil appeal to this court, but then failed to act promptly in its prosecution.  As a consequence, by operation of the Court of Appeal (Civil) Rules 2005, his appeal has been abandoned.  He can now pursue the appeal only if he can persuade us to grant leave to bring a fresh appeal out of time.  This judgment is concerned with whether we should grant such leave.

[2]       Before we consider the merits of that application, we need to set out the background to it. 

The background to the present application

[3]       In 2005, Mr Greer, who is an inmate at Paremoremo Prison, was disciplined following a disciplinary hearing under the Corrections Act 2004.  Cell confinement for 14 days was ordered.  Mr Greer made application to the High Court in Auckland under the Habeas Corpus Act 2001 for an order that he no longer be detained in cell confinement. 

[4]       That application came before Heath J.  He ruled it was misconceived: HC AK CIV 2004-404-5596 5 October 2005.  But he was prepared to treat the application as an application for judicial review under the Judicature Amendment Act 1972.  He granted interim relief under s 8 of that Act.  He made an order that the superintendent of the prison was not to detain Mr Greer in cell confinement pending further order of the court. 

[5]       The substantive hearing took place on 1 March last year.  Harrison J dismissed the application for judicial review in an oral judgment.  Following that dismissal, Mr Greer filed a notice of appeal.  The appeal was filed several days late, but the Crown (as we shall call the first respondent) took no point about that at the time.  We propose to ignore that. 

[6]       On 29 May 2006, the case officer responsible for this appeal wrote to Mr Greer.  In that letter, she noted that Mr Greer’s appeal, while dated 3 March 2006, had not been received by the court until 10 April 2006.  She went on to draw Mr Greer’s attention to a number of requirements set out in the Court of Appeal (Civil) Rules.  In particular, she drew his attention to r 43(1).  She said:

Under Rule 43 of the Court of Appeal (Civil) Rules 2005 the allocation for a hearing date must be applied for and the Case on Appeal filed within six months from the date of filing the notice of motion.  If this deadline is not observed the appeal will be deemed abandoned. 

[7]       Mr Greer did not apply for a fixture or file the case on appeal within the six month time limit, which expired on 10 October 2006.  The three month extension period prescribed by r 43(3) expired on 10 January 2007. 

[8]       On 25 January this year, the court received from Mr Greer an application for an extension of time.  The application was out of time.  This court has no jurisdiction to extend the r 43 time limits: see r 43(4). 

[9]       The only avenue now open to Mr Greer is to apply for leave to bring a fresh appeal out of time under r 29(4) of the Court of Appeal (Civil) Rules.  That this jurisdiction exists following a deemed abandonment has recently been confirmed in Sexton v Rice Craig [2007] NZCA 200. We have been prepared to treat Mr Greer’s application for extension of time as if it were an application for leave to bring an appeal out of time under r 29(4).

The test for a grant of leave under r 29(4) following a deemed abandonment under r 43

[10]     In Sexton, this court held that the court’s discretion under r 29(4) should not be exercised in a way that undermines the objectives of r 43. The court said at [31]:

It will be rare in deemed abandonment cases that the court will exercise its r 29(4) discretion.  The case for the exercise of the discretion will need to be compelling.  The court must reach an overall assessment in the light of all relevant considerations.  These will include the explanation for the delay and for the failure to apply for an extension under r 43, and the merits of the proposed appeal.  Other factors will also be relevant, for example, prejudice to the respondent.  The hurdle is a high one. 

Why we are declining leave

[11]     We have determined that leave should be refused.  We now give the reasons, “briefly and in general terms only”, as permitted by r 27(3) of the Court of Appeal (Civil) Rules. 

[12]     First, there is no sufficient explanation for the delay. 

[13]     Secondly, the proposed appeal appears to have no merit.  The notice of appeal is completely uninformative.  The grounds of appeal are said to “include”:

“(a)    Unlawfulness of decisions;

(b)Conspiracies between respondents and courts.  Judicial officers to evade evidence and/or evade admissions of evidence substantiating criminal corruption amongst law enforcement;

(c)     Substantial litanies of miscarriages of justice;

(d)     Substantial litanies of intended abortions of justice;

(e)     Errors of law;

(f)      Intentional contraventions of law;

(g)     Intentional invasion of legal privilege;

(h)     Denial of justice, denial of law;

(i)      Due to obstructions and conspired attacks, no fair hearing could be had;

(j)Criminal withholding of facilities by the respondents, aided by professional criminals within the courts;

(k)     Denies right of fair hearing.”

[14]     Those grounds are quite unrelated to Harrison J’s decision which is said to be under appeal.  On the basis of the notice, the appeal appears to be hopeless and completely without merit.  Mr Greer has not in his submissions made the points of appeal any clearer.

[15]     Thirdly, even if Mr Greer were now able to show somehow that Harrison J was wrong in declining the application for judicial review, any remedy would have no practical benefit.  Harrison J discharged Heath J’s interim order, with the consequence that the balance of the period of cell confinement has been served.  Thus, even if Harrison J had erred, the discretion to grant judicial review would not be exercised in Mr Greer’s favour. 

[16]     Mr Greer states that this disciplinary result will nonetheless remain on his prison record and may affect later applications for parole.  While we acknowledge that may be so, it is very much a downstream consequence.

[17]     Taking all these circumstances into account, we are satisfied Mr Greer has not come close to clearing the hurdle in Sexton.  This is certainly not a case where the court should exercise its r 29(4) discretion. 

[18]     We accordingly dismiss the application for leave to appeal out of time.  Because Mr Greer is an inmate, there will be no order as to costs. 

Solicitors:
Crown Law Office, Wellington, for First Respondent