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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NZCA 204
Decision Date: 24 May 2007

CaseChat Overview and Summary

Alan Greer, an inmate at Paremoremo Prison, sought leave to appeal out of time to the Court of Appeal of New Zealand against a decision by the High Court that dismissed his application for judicial review of a disciplinary action taken against him. The respondents were the Manager of Custodial Services at Auckland Prison and the Visiting Justice at Auckland Prison. The primary legal issue was whether Greer should be granted leave to appeal out of time, given that his original appeal was deemed abandoned due to a failure to comply with the time limits set out in the Court of Appeal (Civil) Rules 2005.

The Court of Appeal, in dismissing the application, noted that the reasons for the delay and failure to apply for an extension were insufficiently explained. Additionally, the appeal appeared to lack merit, as the grounds of appeal listed in the notice of appeal were unrelated to the decision of the High Court. The Court held that the test for granting leave under Rule 29(4) following a deemed abandonment under Rule 43 should not undermine the objectives of Rule 43. The Court concluded that the appeal was hopeless and without merit, and that even if there were errors in the High Court's decision, there would be no practical benefit to the remedy. The Court thus declined to exercise its discretion to grant leave to appeal out of time.

Orders