DOUGLAS v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZCA 522 [26 October 2023]

DOUGLAS v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZCA 522[26 October 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA301/2023[2023] NZCA 522BETWEEN GLEN ANTHONY DOUGLASAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentCourt: Brown and Wylie JJCounsel: A J Bailey for AppellantD J Perkins for RespondentJudgment:(On the papers)26 October 2023 at 11.30 amJUDGMENT OF THE COURTThe application for an extension of time to appeal from the judgment[2016] NZHC 3184 is adjourned to the hearing of the appeal against the judgment[2023] NZHC 1085.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] On 21 December 2016 Davidson J made a Public Protection Order (PPO) underthe Public Safety (Public Protection Orders) Act 2014 (the Act) in respect of theapplicant, Mr Douglas.1 The PPO took effect on 10 January 2017.1 The Chief Executive of the Department for Corrections v Douglas [2016] NZHC 3184.[2] The Chief Executive of the Department of Corrections is required by s 16 ofthe Act to apply for a review of the continuing justification of a PPO within five yearsof the order being made. A review in respect of Mr Douglas' PPO was conducted byMander J who, in a judgment dated 8 May 2023, directed that the PPO remain inplace.2 Mr Douglas has appealed that decision.3[3] Mr Douglas has filed an application under r 29A of the Court of Appeal (Civil)Rules 2005 for an extension of time to appeal against the decision of Davidson J. Thatapplication is the subject of this judgment.The parties' contentions[4] The parties have very different perspectives on the utility of an appeal from thejudgment of Davidson J. For the respondent, Mr Perkins contends that the issuesraised by the proposed appeal are moot. He submits that the extant order restrictingMr Douglas' liberty is that made by Mander J who undertook a fresh assessment andreached his own conclusions uninfluenced by Davidson J's decision. He emphasisesthat Mander J's order, which is said to supersede that made by Davidson J, is alreadythe subject of an appeal to this Court as of right.[5] Mr Bailey, for Mr Douglas, contends that that approach is plainly wrong. Hesubmits that Mander J did not make an order or attempt to do so. Rather, his Honourissued a judgment which, given his findings as to the risk Mr Douglas presented, meantthat as a matter of law the PPO continued. On a proper analysis there was nosuperseding order. Mr Bailey maintains that there is an important distinction betweenthe operation of s 13 of the Act, which prescribes the statutory test for PPOapplications, and s 18 which relates to reviews of PPOs. He contends that the formerinvolves a discretion while the latter does not.[6] That sharp difference in view in turn translates into a difference concerning theappropriate manner of determination of the r 29A application. In his interlocutoryapplication Mr Douglas stated that he was effectively seeking to combine his proposed2 Chief Executive of the Department of Corrections v Douglas [2023] NZHC 1085.3 The filing number for this appeal is CA302/2023.appeal from the judgment of Davidson J with the appeal filed in respect of Mander J'sjudgment. However, Mr Bailey now submits that if the extension application isgranted the appeal against the judgment of Davidson J should be heard and determinedprior to the extant appeal against the judgment of Mander J.[7] Mr Perkins opposes the proposition that, if leave is granted, the appeals shouldbe heard separately. He makes the point that separate appeals would likely involvedifferently constituted panels of the court. He further notes that, if the first appeal wasdismissed, Mr Douglas would continue to be detained while awaiting a second fixture.[8] Mr Perkins proposes an alternative course whereby the question of leave toappeal from the judgment of Davidson J should be adjourned for determination by thepanel hearing the appeal from the judgment of Mander J and that the parties shouldfile submissions addressing both the issue of leave and the substance of the judgmentof Davidson J. While recognising that as an available option, Mr Bailey's preferenceis for separate hearings of appeals from the two judgments.Decision[9] The principles applicable to applications for an extension of time under r 29Awere explained by the Supreme Court in Almond v Read.4 Several factors wereidentified as likely to require consideration including the length of the delay and thereasons for it. However, the ultimate question when considering the exercise of thediscretion is what the interests of justice require.[10] In the particular circumstances of this matter we do not consider that factorssuch as delay or the reasons for it are of much significance. This Court is seized of anappeal against the 2023 judgment and the panel hearing that appeal will inevitably bebetter placed to determine whether, and to what extent, there is merit in also revisitingthe 2016 judgment.[11] In our view the better course is to have a single hearing which avoids the riskof similar issues being determined by separate panels. In these unusual circumstances4 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 80. See also Yarrow v Westpac New ZealandLtd [2018] NZCA 601 at [4].we are attracted to the course proposed by Mr Perkins. Consequently, we adjourn theapplication for an extension of time to appeal from the judgment of Davidson J to thehearing of the appeal against the judgment of Mander J.[12] We direct that in addition to submissions concerning the judgment of Mander Jthe parties are to provide their submissions both on the question of an extension oftime to appeal from the judgment of Davidson J and the substance of the proposedappeal. In our view this course is calculated to secure finality in the shortest overallperiod of time.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent