Mark Anthony Whittington v Solicitor-General
[2025] NZCA 175
•15 May 2025 at 3 pm
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
CA820/2024
[2025] NZCA 175
BETWEEN MARK ANTHONY WHITTINGTON Applicant AND SOLICITOR-GENERAL Respondent
| Court: | Courtney and Mallon JJ |
| Counsel: | Applicant in person |
| I M G Clarke for Respondent | |
| Judgment: | 15 May 2025 at 3 pm |
| (On the papers) |
JUDGMENT OF THE COURT
| A | The application is declined. |
| B | We make no order as to costs. |
____________________________________________________________________
REASONS OF THE COURT
(Given by Mallon J)
Introduction
Mr Whittington applies for an extension of time to bring an appeal against a
decision of the High Court.[1] The respondent opposes the application.
[1] Whittington v Solicitor-General [2024] NZHC 1314.
Mr Whittington’s mother passed away on 16 September 2019. The underlying
cause of death was recorded in the Medical Certificate of Cause of Death
(the Certificate) as being carcinoma of the bladder. The doctor who signed the
Certificate considered that the death did not need to be reported to the coroner.
On 15 April 2020 Mr Whittington requested that the Solicitor-General order a
coronial inquiry into the death of his mother and provided material in support of his
request, including a complaint he had made to the Health and Disability Commissioner
about his mother’s treatment.[2] On 6 November 2020 the Acting Deputy
Solicitor-General declined Mr Whittington’s request.[3] Mr Whittington then raised
further issues, believing that she had been misdiagnosed, that there was a conspiracy
relating to his mother’s death, and that “someone violently ended her life”.[4] The
Deputy Solicitor-General confirmed the decision not to order a coronial inquiry.
[2] At [4].
[3] At [5].
[4] At [6].
Mr Whittington applied for judicial review of the decisions of the Acting
Deputy Solicitor-General and the Deputy Solicitor-General. His application was heard
by Palmer J in the High Court. The Judge considered that the evidence before him did
not support the existence of an error in the decisions, nor was there a basis to support
pre-determination.[5] The Judge reviewed the material and concluded that it did not
support Mr Whittington’s belief that the death certificate incorrectly recorded the
cause of his mother’s death, nor that it was suspicious.[6] Rather, the medical notes
supported the conclusion that the underlying cause of her death was carcinoma of the
bladder and there was no good reason to doubt the accuracy of the medical notes.[7] The
Judge concluded that the decisions were open to the decision-makers, and were
reasonable, lawful and valid.[8] Mr Whittington’s application for judicial review was
therefore declined.[9]
[5] At [10].
[6] At [12].
[7] At [12].
[8] At [14].
[9] At [15].
Mr Whittington then sought leave to appeal to the Supreme Court against the
High Court decision. He raised essentially the same grounds as those raised in the
High Court as well as some process issues. The Supreme Court held that nothing
raised by Mr Whittington in his appeal suggested that the High Court decision was
wrong or that the process in the High Court was unfair and there was therefore no risk
of a miscarriage of justice.[10] Additionally, it considered there were no exceptional
circumstances justifying a direct appeal from the High Court to the Supreme Court.[11]
[10] Whittington v Solicitor-General [2024] NZSC 93 at [9], citing Senior Courts Act 2016, s 74(2)(b);
[11] At [10], citing Senior Courts Act, s 75.
Mr Whittington now applies for an extension of time to appeal the High Court
decision in this Court. He says the hearing in the High Court was unfair and the
decision erroneous.
Jurisdiction
Mr Whittington did not bring his appeal to this Court within the required
20 working days after the High Court’s decision.[12] He therefore requires an extension
of time to bring his appeal.[13]
[12] Court of Appeal (Civil) Rules 2005, r 29(1)(a).
[13] Rule 29A(1).
On an application for an extension of time the ultimate question is what the
interests of justice require in the particular circumstances of the case.[14] Relevant
considerations include: the length of the delay; the reasons for the delay; the conduct
of the parties, particularly of the applicant; any prejudice or hardship to the respondent
or to others with a legitimate interest in the outcome; and the significance of the issues
raised by the proposed appeal, both to the parties and more generally.[15] An extension
may be refused where the lack of merit in an appeal is readily apparent and the appeal
is clearly hopeless.[16]
[14] Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38].
[15] At [38].
[16] At [39].
Here the delay is substantial. The 20-working day period for Mr Whittington
to bring his appeal ended on 21 June 2024. Mr Whittington’s application for an
extension of time to appeal to this Court was filed on 16 December 2024, nearly six
months after the required period. While his application to the Supreme Court for leave
to appeal was filed on 5 June 2024, that application was dismissed on 5 August 2024
and his application to this Court was filed over four months later. Although there is a
handwritten note at the end of his application indicating that personal health reasons
meant that he was unable to file the application earlier, Mr Whittington has not
provided any further explanation of this.
As to Mr Whittington’s conduct, the respondent submits that Mr Whittington
failed to meet several timetable orders and “unless orders” were made against him.
He has filed several amended submissions and memoranda in this Court. We do not
count this against him being in mind that he is self-represented and the depth of feeling
he obviously has in respect of the subject matter of his appeal.
The respondent submits the prejudice from Mr Whittington’s delayed appeal
is the cost of responding to this application in circumstances where there is no reason
for the long delay (other than and to the extent that he chose to seek leave to appeal to
the Supreme Court) and his proposed appeal is hopeless. The strength of this point
depends on whether the proposed appeal is hopeless.
We accept that an erroneous decision to order a coronial inquiry can be a matter
of significance to the person seeking that order and more generally. However, that is
not so here because the proposed appeal is hopeless. As the Supreme Court found,
nothing raised by Mr Whittington suggests that the High Court decision may have
been wrong or that the process was unfair. Mr Whittington’s understanding of the
content of his mother’s medical records and his submissions relating to the letter
written by Ms Whittington’s doctor (which was included in the common bundle for
the High Court hearing) advanced in support of his extension application do not
support a different view. We have reviewed the transcript of the hearing before
Palmer J and it is apparent that Mr Whittington had a full opportunity to be heard.
In light of the delay, the fact that the Supreme Court considered there was no
risk of a miscarriage of justice, and that our review of the proposed appeal including
the transcript has concluded that it is without any prospect of success, we conclude
that an extension of time is not in the interests of justice. Despite this outcome and
that the respondent has incurred significant costs responding to Mr Whittington’s
proceedings and applications following his mother’s death, we decline to make an
order for costs.
Result
The application is declined.
We make no order as to costs.
| Solicitors: |
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
WHITTINGTON v SOLICITOR-GENERAL [2025] NZCA 175 [15 May 2025]
and Junior Farms Ltd v Hampton Securities Ltd (in liq) [2006] NZSC 60, (2006) 18 PRNZ 369 at
[5].
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