Hanning v Serco New Zealand Limited

[2020] NZHC 3345

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-151

[2020] NZHC 3345

UNDER

Judicial Review Proceedings 2016 and Part 5 of the Corrections Regulations 2005

IN THE MATTER

of a judicial review of various matters with respect to various defendants

BETWEEN

PAUL KENNETH HANNING

Applicant

AND

SERCO NEW ZEALAND LIMITED

First Respondent

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Second Respondent

THE CHAIRMAN OF THE NEW ZEALAND PAROLE BOARD

Third Respondent

Hearing:

On the papers

Appearances:

Applicant in Person

J K Scragg and E M Greig for First Respondent D Jones and C Wrightson for Second Respondent

Judgment:

16 December 2020

JUDGMENT OF CLARK J

Introduction

[1]    Mr Hanning seeks leave to appeal my decision declining his application to appoint an amicus to represent him in his judicial review proceedings.1

1      Hanning v Serco New Zealand Ltd [2020] NZHC 1980.

HANNING v SERCO NEW ZEALAND LIMITED [2020] NZHC 3345 [16 December 2020]

[2]    Mr Hanning’s application for the appointment of an amicus was filed as an interlocutory application without notice pursuant to rr 7.19(4) and 7.23(1) of the High Court Rules 2016.

[3]    Under s 20 of the Judicial Review Procedure Act 2016 a party who is dissatisfied with an interlocutory order made in respect of an application for judicial review may appeal to the Court of Appeal in accordance with s 56 of the Senior Courts Act 2016. Section 56(3) creates a barrier to an appeal from any decision of the High Court made on an interlocutory application unless leave to appeal is given.

[4]    An application for leave to appeal must be made within 20 working days after the date of the decision “or within any further time that the High Court may allow”.2 If the High Court refuses leave, the Court of Appeal may grant that leave on application made to the Court of Appeal within 20 working days of the refusal.3

Should Mr Hanning be granted an extension of time?

[5]    The decision Mr Hanning wishes to appeal was delivered on 7 August 2020. The due date for appealing was therefore 4 September 2020. Mr Hanning filed his application on 25 September 2020, three weeks out of time.

[6]    Mr Hanning has not given an explanation as to why his appeal was filed late. I note from the Court file itself, however, a notation by the registry that Mr Hanning’s notice of appeal was filed in the wrong court. It may be that this error contributed to the delay.

[7]    I propose to grant Mr Hanning’s application for an extension of time within which to appeal. First, no prejudice to the respondents is asserted. Indeed, both the first and second respondents take a neutral position on the application. While it cannot be said that a decision whether or not to appoint an amicus has a broad significance it is significant to Mr Hanning. A further consideration is that extensive argument has not been offered nor is it required in order to determine the appeal on the merits. I regard all these factors as relevant to the exercise of the Court’s discretion which was

2      Senior Courts Act 2016, s 56(3).

3      Section 56(5).

discussed in helpful detail in Almond v Read.4 I turn next to the merits of Mr Hanning’s application to appeal.

Application for leave to appeal

[8]    In Finewood Upholstery Ltd v Vaughan Fitzgerald J described the requirement for leave to appeal as a “filtering mechanism” to ensure unmeritorious appeals from interlocutory orders having no great significance to the parties or more generally, do not unnecessarily delay the proceedings.5

[9]    Her Honour cited A v Minister of Internal Affairs in which Dobson J accepted the following considerations may be relevant to an application for leave:6

(a)A high threshold exists for the granting of leave. An allegation of error of law or fact is generally insufficient. An applicant should raise an arguable error.

(b)Leave should only be granted where the circumstances warrant incurring further delay.

(c)Determination of the alleged error should be of general or public importance or be of sufficient importance to the applicant to outweigh the lack of any general or precedential importance in an appellate consideration of the court’s reasoning.

[10]   Mr Hanning applies to appeal the decision of Simon France J and my subsequent decision, both declining Mr Hanning’s application to appoint an amicus. Mr Hanning’s grounds for appeal focus on his status as a litigant in person who is incarcerated and feels unfairly treated and disadvantaged. Mr Hanning says he has sustained a traumatic brain injury, is not trained in the law, has limited insight into court procedures and requests assistance by way of standby counsel.

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

5      Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13], cited with approval by the Court of Appeal in Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 and Greendrake v District Court of New Zealand [2020] NZCA 122.

6      At [9], referring to A v Minister of Internal Affairs [2017] NZHC 887 at [10]–[13].

[11]   I addressed these matters in my judgment declining Mr Hanning’s second application for an appointment of an amicus. I referred first to Simon France J’s decision on 16 July 2020 which was in the following terms:

The application for the Court to appoint an amicus/stand by counsel is declined. Stand by counsel are used in criminal trials. The Court will not require the assistance of an amicus.

[12]I went on to say:7

[6] Mr Hanning’s present application is made on substantially the same grounds: that he is self-litigating and feels ill-equipped to deal with the proceedings himself. He attributes this to an earlier traumatic brain injury as a result of which he says he has trouble retaining information. Mr Hanning says he may not be able to respond or conduct himself in a timely fashion in accordance with court practice.

[13]   Mr Hanning’s application for leave to appeal does not meet the high threshold for the grant of leave. No arguable error is raised and, having reviewed the decision that Mr Hanning seeks to appeal, I am satisfied no error is apparent.

[14]   In any event, the proceeding is still at a very early stage. In my capacity as duty Judge, I convened a case management conference on 30 November 2020. The respondents are yet to file notices under r 5.2 of the High Court Rules seeking particulars of Mr Hanning’s claim.

[15]   Mr Hanning advised during the course of that telephone conference that he had approached an Auckland barrister, Deborah Manning, who he said was considering assisting Mr Hanning.

[16]   Even without the particulars the respondents seek it is clear from the statement of claim amended 5 May 2020 that no important point of law arises on which the Court will require the assistance of an amicus. As observed in Hartley v Attorney-General

7      Hanning v Serco New Zealand Ltd, above n 1.

questions concerning the rights and entitlements of prisoners have been litigated and determined in a number of cases many of which involved self-represented claimants.8

[17]   The Court remains free to keep under review the desirability of appointing an amicus, not to assist Mr Hanning but to ensure the Court’s attention is directed to all relevant matters. At this stage the Court does not require the assistance of an amicus. There is no error of general or public importance in the decision below to warrant an appeal.

[18]Accordingly, the application is declined.

Karen Clark J

Solicitors:

Duncan Cotterill, Wellington for First Respondent Crown Law Office, Wellington for Second Respondent

8      Hartley v Attorney-General [2018] NZHC 2639 at [12], citing Genge v Chief Executive, Department of Corrections [2017] NZHC 305 (judicial review); Greer v Prison Manager at Rimutaka Prison HC Wellington CIV-2008-485-1603, 18 December 2008 (judicial review); Greer v Chief Executive, Department of Corrections [2018] NZHC 1240 (interim orders); R v Greer CA197/01, 4 June 2003 (criminal context); Taylor v District Court at North Shore HC Auckland CIV-2009-404-2350, 24 March 2010 (declaratory decision).