MISIUK V CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS COA CA491/2011

MISIUK V CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS COA CA491/2011 20 September 2011IN THE COURT OF APPEAL OF NEW ZEALANDCA491/2011[2011] NZCA 468BETWEEN PAWEL MARIAN MISIUKApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 13 September 2011Court: O'Regan P, Harrison and Stevens JJCounsel: Applicant in personC Griffin for RespondentJudgment: 20 September 2011 at 3:00 PMJUDGMENT OF THE COURTA The application for extension of time to appeal is dismissed.B The applicant must pay the respondent costs in the sum of $750.00.____________________________________________________________________REASONS OF THE COURT(Given by Stevens J)Introduction[1] This is an application by Mr Misiuk (the applicant) for an extension of time to appeal from a decision of Dobson J in the High Court refusing a request by the applicant for a written transcript of an earlier hearing before the same judge.1 The1 Misiuk v Superintendent of a Penal Institution HC Auckland CIV-2010-404-6625, 8 October2010.hearing itself comprised two parts. The first was an application for bail and the second concerned an application for habeas corpus.[2] The outcome of the hearing dealing with the bail application (which was declined) was recorded in a minute by Dobson J.2 The application for habeas corpus, which was the second such application within a period of two weeks, was alsodeclined ("the habeas corpus decision"), with reasons being given by the Judge in the first part of the judgment in respect of which the applicant now seeks leave to appeal.3[3] In December 2010, the applicant attempted to file a notice of appeal against the habeas corpus decision. Arnold J directed the Registry not to accept the notice of appeal for filing.4 The minute noted that the appeal was out of time and signalled that the applicant must apply for an extension of time within which to appeal. No application was subsequently made for an extension of time within which to appeal the habeas corpus decision.[4] Rather, the applicant has filed an application for extension of time to appeal against the second part of the judgment of Dobson J dated 8 October 2010 dealing with the refusal to provide the written transcript of the bail and habeas corpus hearings. On its face the appeal seeks to challenge the interpretation of the Judge concerning r 7(2) of the Criminal Proceedings (Access to Court Documents) Rules 2009 and r 3.8(2) of the High Court Rules dealing respectively with the rules regarding access to documents in criminal and civil matters.[5] The application for extension of time is opposed by the respondent. Counsel for the respondent submits that the appeal is moot and an abuse of process. Further, there has been inordinate delay and the appeal has no merit or public importance. Counsel also submits that the attempt to challenge the access to documents decisionreally belies the applicant's true intention. This is because the applicant contends that the concealment of court records (the transcript of the bail and habeas corpushearings) without good cause means "the whole proceedings may be held invalid".2 Misiuk v New Zealand Police HC Auckland CRI-2009-404-144, 7 October 2010.3 At [1]–[11].4 See minute of Arnold J dated 20 December 2010.In other words this is merely another attempt by the applicant to litigate one of his four unsuccessful applications for habeas corpus since his remand in custody in May 2009.5The grounds of the application and appeal[6] The grounds advanced in support of the extension of time application are in summary as follows:(a) Mr Misiuk is self-represented (and therefore the Court should allow him some leniency).(b) That Dobson J made an error of law in his application of the Criminal Proceedings (Access to Documents) Rules which only recently became apparent to Mr Misiuk and that the appeal was filed forthwith on discovery of the error.(c) That there is a public interest in the appeal being considered. Errors of law should be corrected.(d) The area is possibly a novel one.[7] The grounds advanced in support of the actual appeal may be summarised as follows:(a) That Dobson J misinterpreted r 7(2) of the Criminal Proceedings (Access to Court Documents) Rules as applying to production of5 The first was Misiuk v Superintendent of a Penal Institution [2011] 1 NZLR 393 (HC)(23 September 2010, dismissed by Dobson J); unsuccessfully appealed Misiuk v ChiefExecutive, Department of Corrections [2010] NZCA 480, [2011] 2 NZLR 114; leave declinedby Supreme Court Misiuk v Chief Executive, Department of Corrections [2010] NZSC 140,[2011] 2 NZLR 114. The second was Misiuk v Superintendent of a Penal Institution HCAuckland CIV-2010-404-6625, 8 October 2010 (dismissed by Dobson J). The third applicationwas Misiuk v Chief Executive of the Department of Corrections HC Auckland CIV-2011-404-1346, 14 March 2011 (dismissed by Lang J, not appealed). The fourth was Misiuk v ChiefExecutive of the Department of Corrections HC Auckland CRI 2011-404-50, 22 June 2011(dismissed by Lang J); unsuccessfully appealed Misiuk v Chief Executive of the Department ofCorrections [2011] NZCA 318 (11 July 2011); application for leave to appeal to Supreme Courtfiled on 10 August 2011.transcripts, whereas it in fact relates to copying of court records and does not prevent the applicant from searching and inspecting the records.(b) The rules should be interpreted as being restricted to copying because:(i) It would better allow access to justice.(ii) The costs to the Ministry of Justice ought not be a relevant factor.(iii) It would be more consistent with the New Zealand Bill of Rights Act 1990, in particular s 14, the right to "receive"information.(c) A transcript should be provided in cases where the person is self- represented because it is difficult for self-represented litigants to conduct and comprehend their own cases as it is, and an electronic record will assist.[8] We note that the applicant's notice of appeal purports to be filed under r 7 of the Criminal Proceedings (Access to Court Documents) Rules. Although part of the decision refusing access to the transcripts concerned a criminal proceeding (the bail application), under r 5 of the Criminal Proceedings (Access to Court Documents) Rules, the decision is to be treated as being a civil decision. Thus an application for an extension of time to appeal is required to be filed.6The application for leave[9] The judgment of Dobson J was delivered on 8 October 2010. In his minute dated 20 December 2010, Arnold J recorded that an extension of time to appeal must be applied for within 20 days of the decision appealed against under r 29 of the6 Court of Appeal (Civil) Rules 2005, rr 29 and 29A.Court of Appeal (Civil) Rules 2005. Accordingly the applicant was on notice from that date as to the applicable time for filing any appeal.[10] At the hearing, the applicant informed the Court that in January 2011 he had received correspondence from a third party (presumably a person with legal qualifications) suggesting that he had grounds to challenge the refusal of Dobson J to provide access to the transcripts of the bail and habeas corpus hearings. The applicant also told us that on 15 February 2011 he faxed documentation to the Court registry seeking to file an appeal against the judgment of Dobson J refusing access to the transcripts. But no filing fee was paid and no application for waiver of the filing fee was filed. The Registry responded the next day providing a waiver of fee form for completion.[11] But the present application was only filed on 15 August 2011 by way of adocument entitled "Civil Appeal to the New Zealand Court of Appeal" and dated10 August 2011. It is many months out of time, meaning that the applicant must apply for an extension of time under r 29A of the Court of Appeal (Civil) Rules.Discussion[12] The minute of Arnold J described the previous notice of appeal as an abuse of process. This was because it sought to challenge a habeas corpus decision in circumstances where the Court of Appeal7 and the Supreme Court8 had already ruledthat the applicant's detention was lawful. On its face, the current appeal does not fallinto the same category, given that it is seeking to challenge the refusal to give access to the transcripts of the bail and habeas corpus hearings before Dobson J.[13] In the case of an application for an extension of time, this Court has held that the following considerations are relevant to the determination of the application:97 Misiuk v Chief Executive of the Department of Corrections [2010] NZCA 480, [2011] 2 NZLR114.8 Misiuk v Chief Executive of the Department of Corrections [2010] NZSC 140, [2011] 2 NZLR114.9 See Robertson v Gilbert [2010] NZCA 429; Barber v Cottell [2010] NZCA 31 at [6] and MyNoodle Limited v Queenstown-Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518at [19].(a) the length of the delay and the reasons for it;(b) the parties' conduct;(c) the extent of prejudice caused by the delay;(d) the prospect of merits of the appeal;(e) whether the appeal raises any issue of public importance.[14] Here the applicant's notice of appeal was filed about ten months after the judgment sought to be appealed and some eight months after the applicant was informed by minute of Arnold J that he required an extension of time. The applicant has provided no good reasons as to why the appeal is so far out of time. He says that as he is self-represented he should be granted some indulgence on the question of applicable time limits. The only other explanation offered is that the error of law"only recently became apparent to me" and he then promptly filed his appeal. A similar statement was contained in the document that the applicant sought to file in mid-February 2011. But even then the delay was more than four months. We are satisfied that no sufficient reasons for the delay have been advanced by the applicant.[15] In terms of the conduct of the applicant, the situation is that the applicant has filed a number of applications for bail, as well as the four (unsuccessful) applications for habeas corpus referred to above. As the respondent has observed, the applicant has had multiple applications for bail and for habeas corpus, including appeals to this Court and the Supreme Court, since being remanded in custody in May 2009. To the extent that this application is a back-handed way of challenging the decision of Dobson J in the habeas corpus decision, we agree with the view of Arnold J that this application involves an abuse of process.[16] We consider that the applicant can gain nothing from his proposed appeal. It is true that he could possibly achieve a short term personal goal of obtaining a recorded transcript of the bail and habeas corpus proceedings at which he was present. However, the applicant has subsequently been convicted and sentenced toimprisonment and is now detained in prison under fresh warrants of commitment from the District Court dated 18 April 2011. These events undoubtedly supersedethe current appeal, making it redundant. We agree with the respondent's submissionthat the access to documents point is now moot.[17] Even if the applicant were able to succeed in his proposed appeal (about which there must be serious doubt), that could have no bearing on his current position. Moreover, we are satisfied that the appeal does not raise any identifiable question of general or public importance.Result[18] For the reasons set out above, the application for an extension of time is dismissed.Costs[19] The applicant must pay the respondent costs in the sum of $750.00.Solicitors:Crown Law Office, Wellington for Respondent