I C v The Canterbury District Health Board

[2002] NZCA 52

IN THE COURT OF APPEAL OF NEW ZEALAND CA1/02

BETWEEN	I C
Applicant

AND	THE CANTERBURY DISTRICT HEALTH BOARD
Respondent

Coram:	Gault J
Blanchard J
McGrath J
Judgment (on the papers):	11 March 2002

JUDGMENT OF THE COURT

1. This decision concerns an application for leave to file an appeal out of time.  The applicant (whom we will call “the appellant”) has indicated in writing his wish that the matter be dealt with on the papers.  The District Inspector of Mental Health abides the decision of the Court.  A written submission has been received from the respondent Health Board.

2. The appellant is a person who has been detained in a hospital as a patient by virtue of a compulsory inpatient order under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the Act). In the case appealed from, William Young J conducted a review under s84 of the Act to determine the appropriateness of the continuing detention of the appellant. In a reserved judgment released on 6 July 2001, the Judge declined to order that the appellant be discharged from hospital. The appellant now seeks leave to appeal, out of time, from this decision.

3. We will proceed on the assumption that this Court has jurisdiction to hear such an appeal; that in terms of s66 of the Judicature Act 1908 it would be an appeal from a judgment, decree or order of the High Court.  However, because s84 concerns an inquiry by a Judge of the High Court rather than a determination by the Court itself, that question may not be free from doubt.  But we have not heard argument on it and leave it for another day.

4. Rules 5 and 6 of the Court of Appeal (Civil) Rules 1997 collectively establish that, absent special leave from this Court or the Court below, and unless the enactment conferring the right of appeal otherwise provides, no appeal may be brought after the expiration of 28 days following the time when the decision appealed from is given. The appellant in this case filed the present application for leave to appeal out of time on 10 December 2001, some five months after the delivery of the judgment.

5. As this Court has consistently made clear, the discretion to grant special leave to appeal out of time is a flexible one, governed ultimately by the overriding consideration of the justice of the case (Hetherington Ltd v Carpenter (1995) 9 PRNZ 1, 5). In a letter to this Court of 14 February 2002, the appellant, who now proceeds without legal representation, sought to explain the delay in this case by alleging “lethargy and incompetence” on the part of the solicitors handling the appeal. This Court has tended to regard mistakes or oversights on the part of solicitors, in the absence of prejudice to the other party, as a factor in favour of granting special leave to appeal (AMP v Bleier (1992) 6 PRNZ 582, 587-588). Whilst certain documents before the Court indicate a degree of uncertainty surrounding the progress of this appeal in August 2001, we wish to make it clear that the evidence before us falls well short of establishing the “lethargy and incompetence” on the part of the solicitors alleged by the appellant. As this Court has previously indicated, full affidavits explaining the reasons for the delay are essential in respect of applications for special leave (Lange v Town and Country Planning Appeal Board [1967] NZLR 915, at 917, 918).

6. In any event, special leave is unlikely to be granted where the appeal appears to be “hopeless” (Prudential Building & Investment Society of Canterbury (in liq) v Hankins (1991) 5 PRNZ 160, 162). In our view, the present appeal falls into this category. The appellant makes two submissions on appeal. The first is that there was an error of process vitiating the decision of William Young J. This error is said to relate to an aspect of the discussion between the appellant and the Judge during the hearing. The Judge was attempting to ascertain the views of the appellant on an affidavit supplied to the Court by a person referred to throughout the judgment as Ms A, and indicated that he would take the appellant through the incidents referred to therein “one at a time”. The appellant complains that the Judge then failed to do so. This submission appears to be a thinly veiled attempt to re-litigate the facts upon which the learned Judge reached his conclusion that the appellant represented a continuing danger to the health and safety of members of the public, specifically Ms A, and her parents Mr and Mrs A. As such, and in that it attempts to challenge matters of approach wholly within the purview of the Judge concerned, the submission is without merit and could not possibly succeed on appeal.

7. The second submission made by the appellant is that the Judge made an error of law in his judgment. It is difficult from the appellant’s submissions to discern the precise nature of the error alleged, but it is clear that the appellant’s challenge is directed to His Honour’s treatment of the Harassment Act 1997 in para [78] of the judgment. The appellant may be attempting to bring out the point that a restraining order granted under the Harassment Act protects not only the person for whose protection the order is granted (person A), but by virtue of s 5 of that Act, any other person (person B) with whom person A is in a family relationship. By s 2(2) of the Harassment Act, a family member (further defined in s 2 to include blood relatives) falls within the ambit of this “family relationship”. Thus, contrary to His Honour’s treatment of the point in the judgment, Mr and Mrs A would not have needed to apply for a separate restraining order against the appellant when one had already been granted to ensure Ms A’s protection in this regard.

8. Nevertheless, William Young J clearly concluded that Ms, Mr and Mrs A’s health and safety would be compromised if the appellant were to be released on the basis of his view that the appellant’s obsessive behaviour could not be adequately restrained by the existence of a formal legal order. Indeed, at para [68] of the judgment, the Judge explicitly notes that recourse to restraining orders under the Harassment Act provided insufficient “grounds for confidence that [the appellant] would not continue to make contact with Ms A and her parents if he [were] able to do so."

9. This appellant’s second submission is thus directed at a point which avails him little on appeal, not being material to the decision in the Court below. We see nothing else in para [78] of the judgment that would justify an appeal against the decision. 

10. Accordingly, as the appellant has failed to adequately account for a delay of five months in pursuing the appeal, and due to the fact that neither of the appellant’s submissions could possibly succeed on such an appeal, we refuse the application for leave to appeal out of time.