McCorkindale v Chief Executive of the Department of Corrections
[2018] NZCA 512
•21 November 2018 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA616/2017 [2018] NZCA 512 |
| BETWEEN | ROBERT JOHN MCCORKINDALE |
| AND | CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS |
| Hearing: | 19 November 2018 |
Court: | Cooper, Winkelmann and Gilbert JJ |
Counsel: | M Starling for Applicant |
Judgment: | 21 November 2018 at 9.30 am |
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal is granted.
BThe appeal must be brought within 10 working days of the date of delivery of this judgment.
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REASONS OF THE COURT
(Given by Gilbert J)
Mr McCorkindale applies under r 29A of the Court of Appeal (Civil) Rules 2005 (the Rules) for an extension of time in which to appeal against a public protection order made against him in the High Court at Christchurch in a judgment delivered by Gendall J on 17 October 2017.[1]
[1]Chief Executive of the Department of Corrections v McCorkindale [2017] NZHC 2536.
The ultimate question as to whether the discretion to extend time should be exercised depends on what the interests of justice require. The Supreme Court summarised the factors likely to require consideration in Almond v Read.[2] These include the length of the delay, the reasons for the delay, the conduct of the parties, any prejudice occasioned by the delay and the significance of the issues raised by the proposed appeal.
[2]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38].
We are satisfied that an extension of time should be granted in this case in the interests of justice for reasons that can be briefly stated.
The proposed appeal concerns Mr McCorkindale’s liberty and is obviously of considerable significance to him. The proposed appeal may also have wider significance and raise matters of public importance regarding the interpretation and operation of the Public Safety (Public Protection Orders) Act 2014.
Mr McCorkindale filed a notice of appeal against the decision on 30 October 2017, two weeks after the judgment was delivered. Security for costs was dispensed with on 26 January 2018. Due to counsel error, the case on appeal was not filed within the three-month period provided in r 43 of the Rules. Although counsel applied for a hearing date on 21 February 2018, the appeal was treated as being abandoned on 22 February 2018 because the case on appeal had not been filed. Notice of this result was given on 20 March 2018. Mr McCorkindale applied for an extension of time under r 43 on 26 April 2018 but this was not actioned because it was not accompanied by the filing fee or any application for a fee waiver. Against this background, Mr McCorkindale filed his present application for an extension of time to lodge a new appeal on 27 July 2018.
This procedural history demonstrates that Mr McCorkindale has been attempting to exercise his right of appeal since the judgment was first delivered. He has been incarcerated throughout this time and is not personally responsible for the procedural defaults that have necessitated the present application. His counsel accepts full responsibility for these defaults. Although any appeal is now well out of time, we are satisfied that the delay has been satisfactorily explained and should not count against Mr McCorkindale.
Mr McCorkindale filed his initial notice of appeal promptly. The respondent has been aware from the outset of Mr McCorkindale’s wish to appeal against the judgment and the grounds of his proposed appeal. The respondent is unable to point to any prejudice arising from the delay. The respondent acknowledges that early clarification of whether Mr McCorkindale is lawfully subject to a public protection order is required.
For these reasons, we conclude that the interests of justice are best served by granting the extension of time sought.
Result
The application for an extension of time to appeal is granted.
The appeal must be brought within 10 working days of the date of delivery of this judgment.
Solicitors:
Crown Law Office Wellington, for Respondent