Whittington v Solicitor-General

[2023] NZHC 3513

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-45

[2023] NZHC 3513

UNDER

the Coroners Act 2006, the Judicial Review Procedure Act 2016, the Crimes Act 1961 and the High Court Rules 2016

IN THE MATTER OF

an application for judicial review

BETWEEN

MARK ANTHONY WHITTINGTON

Applicant

AND

THE SOLICITOR-GENERAL

Respondent

On the Papers

Appearances:

Self-represented Applicant

I M G Clarke for the Respondent

Judgment:

5 December 2023

JUDGMENT OF GWYN J

Solicitors:

Crown Law Office, Wellington

WHITTINGTON v SOLICITOR-GENERAL [2023] NZHC 3513 [5 December 2023]

Background

[1]        The background to this matter is set out in the judgment of Churchman J dated 15 November 2023.1

[2]        As Churchman J recorded in that judgment, it appeared that Mr Whittington sought  to  appeal  two  minutes  issued  by  the  Judge,  on  30  October  2023  and  1 November 2023.

[3]        Justice Churchman determined that no right of appeal arose in respect of either of those minutes.2

[4]        The judgment also considered Mr Whittington’s application for a transcript of the “evidence” from the call over before Churchman J on 30 October 2023. As the Judge noted, no evidence was given at the call over and no transcript exists. Therefore there was nothing to be made available to Mr Whittington.3

[5]        Mr Whittington has now filed a document described as “Memorandum of Mark Anthony Whittington”, dated 1 December 2023.

[6]        The memorandum is confusing, but appears to be an application to appeal to the Court of Appeal under s 56(1)(c)(3) of the Senior Courts Act 2016, in respect of Churchman J’s judgment. Section 56(1)(c)(3) appears to be a typographical error. There is no such section.   I have therefore assumed that Mr Whittington refers to     s 56(3).

[7]        Mr Whittington’s memorandum appears, in substance, an attempt to relitigate Churchman J’s decision on whether there is a right of appeal against a minute and the availability of a transcript.

[8]        To the extent that the memorandum amounts to an application for leave to appeal against the Court’s decision refusing leave to appeal, there is no such right of

1      Whittington v Solicitor-General [2023] NZHC 3227.

2 At [12].

3 At [14].

appeal: Simes v Tennant.4 In light of that authority, Mr Whittington does not have a right of appeal in respect of Churchman J’s judgment.

[9]        To the extent that the memorandum purports to be an appeal against Churchman J’s decision on Mr Whittington’s request for a transcript, as the Judge advised, there is no transcript. What is sought is an impossibility. For that reason, it is not appropriate to grant leave to appeal that aspect of Churchman J’s judgment.

Gwyn J

4      Simes v Tennant (2005) 17 PRNZ 684 (CA) at [39].