Wislang v Attorney-General - [2022] NZCA 341

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA624/2020
[2022] NZCA 341

BETWEEN	MILES ROGER WISLANG Appellant
AND	ATTORNEY-GENERAL OF NEW ZEALAND First Respondent WHITE ISLAND TOURS LIMITED Second Respondent WORKSAFE NEW ZEALAND Third Respondent

CA225/2021
BETWEEN	MILES ROGER WISLANG Appellant
AND	ATTORNEY-GENERAL OF NEW ZEALAND First Respondent WHITE ISLAND TOURS LIMITED Second Respondent WORKSAFE NEW ZEALAND Third Respondent

Court:	Brown and Gilbert JJ
Counsel:	Appellant in Person K G Stephen and A M Piaggi for First Respondent G R Nicholson and R A Idoine for Second Respondent S V McKechnie and T J Bremner for Third Respondent
Judgment: (On the papers)	28 July 2022 at 10.30 am

JUDGMENT OF THE COURT

AIn CA624/2020 an extension of time is granted of 20 working days for the filing of the case on appeal and the lodging of an application for the allocation of a hearing date.
BThe application for an extension of time to appeal in CA225/2021 is declined.
CThere is no order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

Dr Wislang applies for two extensions of time:
(a)in CA624/2020, an appeal against the judgment of Grice J dismissing an application for judicial review,[1] to file the case on appeal and apply for the allocation of a hearing date; and
(b)in CA225/2021 to file an appeal against the Judge’s subsequent costs decision.[2]

The applications are opposed by all three respondents.

Relevant background

[1]Wislang v Attorney-General [2020] NZHC 2588 [Substantive decision].

[2]Wislang v Attorney-General [2020] NZHC 3172 [Costs decision].

In December 2019 Dr Wislang commenced judicial review proceedings against the Attorney-General, White Island Tours Ltd (WIT) and WorkSafe New Zealand (WorkSafe) claiming that the Whakaari/White Island tragedy on 9 December 2019 would not have occurred had WIT been regulated in the manner Dr Wislang suggested. On 31 August 2020, part‑way through the hearing in the High Court at Wellington, Dr Wislang abandoned his claims against WIT but continued with his claims against the other respondents. Those claims were dismissed in the substantive decision.[3]
[3]Substantive decision, above n 1, at [129].
In a subsequent decision on 2 December 2020 the Judge awarded costs to all three respondents.[4]
[4]Costs decision, above n 2, at [57]. In relation to the Attorney-General and WorkSafe the Judge awarded 2B costs. In relation to WIT the judge awarded 2B costs with a 50 per cent uplift. The amount awarded to WIT was $62,240.50.
Dr Wislang filed the appeal CA624/2020 against the substantive decision within time. His application to reduce security for costs was granted in part. He was directed to pay security for costs of $14,120. He did not seek to review that decision.
However, Dr Wislang failed to file the case on appeal or apply for a hearing date within three months of filing the notice of appeal, as required by r 43 of the Court of Appeal (Civil) Rules 2005 (the Rules). Consequently, on 23 February 2021 CA624/2020 was deemed abandoned by…

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: [2022] NZCA 341
Decision Date: 28 July 2022

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Dr Miles Roger Wislang sought an extension of time to file an appeal against the dismissal of his judicial review application and the subsequent award of costs. The respondents, the Attorney-General, White Island Tours Limited, and Worksafe New Zealand, opposed the applications. The appeal against the substantive decision (CA624/2020) was filed within time, but Dr Wislang failed to file the case on appeal and apply for a hearing date within the three-month period required by the Court of Appeal (Civil) Rules 2005. The application for an extension of time to appeal the costs decision (CA225/2021) was filed three months out of time.

The Court considered the principles applicable to applications for an extension of time under r 43 of the Rules, which are the same as those explained by the Supreme Court in Almond v Read in relation to r 29A. The ultimate question when considering the exercise of the discretion is what the interests of justice require. Factors identified as likely to require consideration include the length of the delay, the reasons for the delay, the conduct of the parties, 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.

The Court found that the appeal against the substantive decision (CA624/2020) was not totally without merit, and the delay in filing the case on appeal and applying for a hearing date was relatively short. The Court considered that Dr Wislang should have one final opportunity to comply with r 43 of the Rules, albeit of suitably short duration given that he had ample time to prepare the case in the intervening period. Therefore, the Court granted an extension of time of 20 working days for the filing of the case on appeal and the lodging of an application for the allocation of a hearing date.

The Court found that the application for an extension of time to appeal the costs decision (CA225/2021) was not filed until some three months after the appeal period had expired, and Dr Wislang did not provide an adequate explanation for the delay. The Court considered that Dr Wislang's proposed appeal against the order for costs had no realistic prospects of success and that the balancing of the Almond v Read factors weighed heavily in favour of the respondents. Consequently, the application for an extension of time to appeal was declined. As there has been mixed success on the applications, there is no order for costs.

Orders