MARK ANTHONY WHITTINGTON AND SOLICITOR-GENERAL - [2025] NZSC 107

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 59/2025
[2025] NZSC 107

BETWEEN	MARK ANTHONY WHITTINGTON Applicant
AND	SOLICITOR-GENERAL Respondent

Court:	Glazebrook, Kós and Miller JJ
Counsel:	Applicant in person I M G Clarke for Respondent
Judgment:	25 August 2025

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.
B The applicant must pay the respondent costs of $1,500.

____________________________________________________________________

REASONS

Background

Mr Whittington sought to challenge an Acting Deputy Solicitor‑General’s refusal to order a coronial inquiry into the death of his mother, Carol Ann Whittington. That refusal was confirmed by the Deputy Solicitor-General. In May 2024, the High Court declined Mr Whittington’s application for judicial review, finding the refusal decisions were “reasonable, lawful, and valid”.[1]
[1]Whittington v Solicitor-General [2024] NZHC 1314 (Palmer J) at [14]–[15].
Mr Whittington sought leave to appeal the High Court’s judgment direct to this Court, but leave was refused on 5 August 2024.[2] The proposed appeal raised no issues of general or public importance, nor any risk of a miscarriage of justice as that term applies in the civil context.[3] It also lacked exceptional circumstances justifying a direct appeal to this Court.[4]
[2]Whittington v Solicitor-General [2024] NZSC 93 (Glazebrook, Ellen France and Kós JJ) [SC leave judgment].
[3]At [8]–[9].
[4]At [10] citing Senior Courts Act 2016, s 75.
Mr Whittington then applied for an extension of time to appeal the High Court judgment in the Court of Appeal. That Court, applying the test set out in Almond v Read, declined the application:[5] the delay was substantial, being more than six months after the expiry of the period set out in r 29(1)(a) of the Court of Appeal (Civil) Rules 2005; this Court had already found there was no risk of a miscarriage of justice; and the proposed appeal had no prospect of success.[6]
[5]Whittington v Solicitor-General [2025] NZCA 175 (Courtney and Mallon JJ) at [8]–[14] citing Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.
[6]At [9] and [13].
Still seeking to have his substantive appeal heard, Mr Whittington now applies for leave to appeal the Court of Appeal’s extension of time decision to this Court. He submits the Court of Appeal acted unreasonably and reached a decision which was “plainly wrong”.[7] He says the Court overlooked evidence of medical grounds for his delay in filing, including a letter from his doctor, and failed to properly inquire into alleged irregularities in the High Court which Mr Whittington claims amounted to a breach of his right to natural justice under s 27(1) of the New Zealand Bill of Rights Act 1990.

Our assessment

[7]Citing May v May (1982) 1 NZFLR 165 (CA) at 169–170.

The proposed appeal raises no matter of general or public importance.[8] The Court of Appeal applied settled principles, set out by this Court in Almond v Read, in considering Mr Whittington’s application, and any challenge must turn on the particular facts of his…

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: [2025] NZSC 107
Decision Date: 25 August 2025

CaseChat Overview and Summary

The Supreme Court of New Zealand heard an application by Mark Anthony Whittington, who sought leave to appeal the Court of Appeal’s refusal to grant him an extension of time to appeal the High Court's judgment in his case against the Solicitor-General. The central issue in this case was whether the Court of Appeal's decision to deny Mr Whittington an extension of time to appeal the High Court's refusal to order a coronial inquiry into his mother's death was unreasonable or amounted to a breach of his right to natural justice. The case involved a complex interplay of procedural rules and principles, including the assessment of delays in filing appeals and the consideration of medical evidence.

The legal issues before the court were whether the proposed appeal raised matters of general or public importance, whether it presented a risk of a substantial miscarriage of justice, and whether there were exceptional circumstances justifying a direct appeal to the Supreme Court. The court found that the appeal did not meet any of these criteria. The Court of Appeal had correctly applied the principles set out in Almond v Read in assessing Mr Whittington's application and found that the delay was substantial, the risk of miscarriage of justice was absent, and the appeal had no prospect of success. The court further noted that the medical evidence Mr Whittington sought to rely on could not have changed the outcome of the Court of Appeal’s decision.

The reasoning of the Supreme Court was that Mr Whittington's application lacked merit and was unmeritorious. The Court of Appeal's decision was based on well-established principles and the particular facts of Mr Whittington's case. There was no evident error in the Court of Appeal’s reasoning, and the delay in filing the appeal was significant. Additionally, the court found that even if the medical evidence had been fully accepted, it would not have altered the outcome. The Supreme Court concluded that it was not necessary in the interests of justice to hear the proposed appeal.

The Supreme Court dismissed the application for leave to appeal and ordered the applicant to pay the respondent costs of $1,500. The court found that the application was unmeritorious and unnecessary, and that a contribution towards the Solicitor-General’s costs was appropriate.

Orders