Smith v Attorney-General

IN THE COURT OF APPEAL OF NEW ZEALAND
CA555/2008
[2009] NZCA 321
BETWEENPHILIP SMITH

Applicant

ANDTHE ATTORNEY-GENERAL

Respondent

Hearing:21 July 2009

Court:Hammond, Robertson and Baragwanath JJ
Counsel:M R Bott for Applicant

C T Curran for Respondent

Judgment:22 July 2009 at 4pm

JUDGMENT OF THE COURT

A THE TIME FOR FILING THE CASE ON APPEAL IS EXTENDED TO 31 AUGUST 2009.
BThe grounds of appeal are confined to those contained in the notice of appeal.
CThere is no order as to costs.

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REASONS OF THE COURT
(Given by Baragwanath J)
[1]       The applicant seeks extension under r 43(2)(a) of the Court of Appeal (Civil) Rules 2005 until 31 August 2009 of the time for filing the case on appeal.
[2]       The application for judicial review seeks to challenge security classifications made against the applicant, a serving prisoner, over a number of years. They are alleged to have been made unlawfully so as to result in excessive detention in maximum security. It further challenges the making of a psychopathy report which is alleged to have occurred without the applicant’s informed consent.
[3]       The High Court judgment dismissing the application was delivered on 9 July 2008 and a notice of appeal was filed within time on 1 September 2008.
[4]       The extension was sought owing to delay in resolving whether the applicant would be granted legal aid for the appeal. We were told that a decision has recently been made granting aid.
[5]       Mr Curran resisted the application on the grounds that the issues are now moot and will not place a real controversy before the Court and in any event a Court would be unlikely to grant relief. He further submitted that the claim in respect of the psychological testing should be treated as statute barred by analogy with the provisions of the Limitation Act 1950.
[6]       We are not persuaded that the appeal is necessarily so lacking in merit as to warrant the exercise of discretion against the applicant. We grant an extension of time for filing the case on appeal to 31 August 2009 but the grounds of appeal are confined to those contained in the notice of appeal.
[7]       There will be no order as to costs.
Solicitors:
Nat Dunning Law, Wellington for Applicant
Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

Smith, a serving prisoner, applied to the Court of Appeal of New Zealand for an extension of time to file his case on appeal. Smith's appeal seeks to challenge security classifications made against him over a number of years and the making of a psychopathy report without his informed consent. The appeal arose from a High Court judgment that dismissed Smith's application for judicial review on 9 July 2008. Smith filed a notice of appeal on 1 September 2008, but now seeks an extension of time until 31 August 2009 to file his case on appeal due to delays in resolving his eligibility for legal aid. The Attorney-General opposed the application on the grounds that the issues are moot and the appeal lacks merit. The Court of Appeal granted Smith's application for an extension of time, but confined the grounds of appeal to those contained in the notice of appeal. There was no order as to costs.

The legal issues in this case were whether Smith's application for an extension of time should be granted and whether the grounds of appeal should be confined to those contained in the notice of appeal. The Court of Appeal held that the appeal was not necessarily so lacking in merit as to warrant the exercise of discretion against Smith. The Court granted Smith's application for an extension of time, but confined the grounds of appeal to those contained in the notice of appeal. The Court did not make an order as to costs.

In reaching its decision, the Court of Appeal considered the reasons for the delay in filing the case on appeal, which was due to delays in resolving whether Smith would be granted legal aid for the appeal. The Court noted that a decision had recently been made granting aid. The Court also considered the Attorney-General's argument that the issues were moot and the appeal lacked merit. However, the Court was not persuaded that the appeal was necessarily so lacking in merit as to warrant the exercise of discretion against Smith. The Court granted Smith's application for an extension of time, but confined the grounds of appeal to those contained in the notice of appeal. The Court did not make an order as to costs.

The final orders of the Court of Appeal were to grant Smith's application for an extension of time to file his case on appeal to 31 August 2009, confine the grounds of appeal to those contained in the notice of appeal, and make no order as to costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established