SESTAN V THE DIRECTOR OF AREA MENTAL HEALTH SERVICES WAITEMATA DISTRICT HEALTH BOARD SC 94/2006
Leave to appeal was dismissed because the habeas corpus writ became moot on the applicant's release; the costs application against the Ministry of Justice failed because the Ministry was not at fault and scheduling delays were attributable to counsel's preparation needs and the unavailability of Acting Judges after...
Source-derived case information.
- Citation
- SC 94/2006
- Parties
- Applicant: Josko Sestan; Respondent: Director of Area Mental Health Services Waitemata District Health Board
- Court
- Supreme Court
- Jurisdiction
- New Zealand
- Judgment Date
- 7 March 2007
- Procedural Posture
- Leave to Appeal (habeas Corpus) / Costs Application (post Dismissal)
- Outcome
- Application dismissed
- Legal Topics
- Habeas Corpus, Leave to Appeal, Legal Aid Eligibility, Costs
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josko Sestan
Applicant
Director of Area Mental Health Services Waitemata District Health Board
Respondent
Procedural Posture
Leave to Appeal (habeas Corpus) / Costs Application (post Dismissal)
Legal Issues
- 1 Whether a writ of habeas corpus can be issued after the applicant's release from custody
- 2 Whether the Ministry of Justice can be held liable for costs where it was not a party and hearing scheduling led to release
Ratio Decidendi
Leave to appeal was dismissed because the habeas corpus writ became moot on the applicant's release; the costs application against the Ministry of Justice failed because the Ministry was not at fault and scheduling delays were attributable to counsel's preparation needs and the unavailability of Acting Judges after a recusal.
Court Disposition
Application dismissed
Orders
- Leave to appeal dismissed
- Application for costs against the Ministry of Justice dismissed
Full Case Text
Judgment text and source record
1 paragraphs
SESTAN V THE DIRECTOR OF AREA MENTAL HEALTH SERVICES WAITEMATA DISTRICT HEALTH BOARD SC 94/2006 7 March 2007IN THE SUPREME COURT OF NEW ZEALAND SC 94/2006 [2007] NZSC 10BETWEEN JOSKO SESTAN Applicant AND THE DIRECTOR OF AREA MENTAL HEALTH SERVICES WAITEMATA DISTRICT HEALTH BOARD Respondent Court: Blanchard, Tipping and McGrath JJ Counsel: T Ellis for Applicant D A Marshall for Respondent V Sim for Ministry of Justice Judgment: 7 March 2007JUDGMENT OF THE COURT (COSTS) The application is dismissed. REASONS[1] The application for leave to appeal was dismissed because a writ of habeas corpus could not be issued once the applicant had been released from custody. The present application for costs is not against the respondent but against the Ministry of Justice which was not a party to the case. It is presumably made on the basis that the applicant was not eligible for legal aid. The applicant's counsel suggests that the Ministry of Justice was at fault because the hearing did not take place prior to the applicant's release from custody which occurred early in January. [2] The reasons why the application made just prior to Christmas could not be heard before the vacation were traversed in a Minute of the Court at that time. As noted, it was counsel himself who indicated a need for preparation time so that the matter could be well argued and to allow for interveners to be heard. As it happened,because of a recusal by one of the permanent Judges of this Court, an Acting Judge would have been needed and none of the limited number of persons permitted by the Supreme Court Act 2003 to perform that function would have been available at that time. The primary reason, was however, the first. [3] In these circumstances it is verging on the irresponsible to suggest that the Ministry of Justice has been in any way at fault.Solicitors: Blackstone Chambers, Wellington for Applicant M R Heron, Auckland for Respondent Crown Law Office, Wellington