Wislang v Attorney-General

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.