DERMOT GREGORY NOTTINGHAM and ROBERT EARLE MCKINNEY [2021] NZSC 147

DERMOT GREGORY NOTTINGHAM and ROBERT EARLE MCKINNEY [2021] NZSC 147 [3 November2021]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 126/2021[2021] NZSC 147IN THE MATTER OF Application by DERMOT GREGORYNOTTINGHAM and ROBERT EARLEMCKINNEYCourt: William Young, Ellen France and Williams JJCounsel: Applicants in personJudgment: 3 November 2021JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONS[1] The applicants filed an application and annexures with the Registry seekingvarious orders, including declarations about compliance by a range of institutions withthe International Covenant on Civil and Political Rights1 and the Siracusa Principleson the Limitation and Derogation Provisions in the International Covenant on Civiland Political Rights,2 and as to various aspects of the Government's response toCOVID-19.[2] The Registrar advised the applicants by letter of 4 October 2021 that theapplication was not accepted for filing. The reason for rejection was that the SupremeCourt was an appellate court with jurisdiction to consider applications for leave to1 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature16 December 1966, entered into force 23 March 1976).2 American Association for the International Commission of Jurists Siracusa Principles on theLimitation and Derogation Provisions in the International Covenant on Civil and Political Rights(April 1985).appeal the decisions of other New Zealand courts within its jurisdiction. The Registrarconsidered the application did not come within that jurisdiction.[3] Dissatisfied with this response, the applicants applied for "review" of theRegistrar's decision. In accordance with the procedure described by this Court inSlavich v R, the Registrar referred the application and the other documents filed to apanel of leave judges.3[4] We treat the application filed as an application for leave to appeal, as theapplicants suggest. They seek to invoke what they say is the Court's inherentjurisdiction to award the relief sought. However, there is plainly no jurisdiction forthe Court to consider an application for leave in the absence of a lower court decisionagainst which an application for leave to appeal can be initiated. To the extent theapplication for leave may be construed as initiated against earlier decisions of theCourt of Appeal and the High Court challenging measures introduced as part of theGovernment's response to COVID-19 on the basis those measures comprised unlawfuldetention, we decline the application for leave.4 Such an application would plainly beout of time, but there is no adequate explanation for the delay, nor are there anycompelling reasons advanced in favour of an extension.[5] The application for leave to appeal is accordingly dismissed.5[6] We add that we also do not see any merit in the applicants' complaint that theRegistry did not treat the application with suitable urgency.3 Slavich v R [2015] NZSC 195, (2015) 23 PRNZ 117 at [9].4 See Nottingham v Ardern [2020] NZCA 144, [2020] 2 NZLR 207 (Kós P, French and Collins JJ)dismissing appeals against the judgments of the High Court in Nottingham v Ardern [2020] NZHC796, [2020] 2 NZLR 197 (Peters J) and B v Ardern [2020] NZHC 814 (Peters J).5 To the extent the application is advanced to relate to any future judgments, including inapplications the applicants presently have before the High Court, there is plainly no jurisdictionfor the Court to consider the application absent a lower court determination.