SMITH V THE ATTORNEY-GENERAL CA CA555/2008
The Court granted an extension of time to 31 August 2009 because it was not satisfied the appeal was so lacking in merit as to justify refusing the application; the grant is confined to the grounds set out in the notice of appeal and there is no order as to costs.
Source-derived case information.
- Citation
- openlaw-77d345fb_5128_47e0_810e_a9816eeb8ea9.pdf
- Parties
- Applicant: Philip Smith; Respondent: The Attorney-General
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 22 July 2009
- Procedural Posture
- Judicial Review (appeal) / Application for Extension of Time to File Case on Appeal
- Outcome
- Extension of time granted to 31 August 2009; grounds of appeal confined to those in the notice of appeal; no order as to costs.
- Legal Topics
- Judicial Review, Security Classification of Prisoners, Psychological Testing and Consent, Limitation/limitation by Analogy, Extension of Time Applications
Source-derived case record
Summary, issues, holding and outcome
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Parties
Philip Smith
Applicant
The Attorney-General
Respondent
Procedural Posture
Judicial Review (appeal) / Application for Extension of Time to File Case on Appeal
Legal Issues
- 1 Whether to grant an extension of time under r 43(2)(a) of the Court of Appeal (Civil) Rules 2005
- 2 Whether the appeal is moot and therefore non-justiciable
- 3 Whether a claim concerning psychological testing is statute-barred by analogy with the Limitation Act 1950
Ratio Decidendi
The Court granted an extension of time to 31 August 2009 because it was not satisfied the appeal was so lacking in merit as to justify refusing the application; the grant is confined to the grounds set out in the notice of appeal and there is no order as to costs.
Court Disposition
Extension of time granted to 31 August 2009; grounds of appeal confined to those in the notice of appeal; no order as to costs.
Orders
- The time for filing the case on appeal is extended to 31 August 2009.
- The grounds of appeal are confined to those contained in the notice of appeal.
Full Case Text
Judgment text and source record
1 paragraphs
SMITH V THE ATTORNEY-GENERAL CA CA555/2008 22 July 2009IN THE COURT OF APPEAL OF NEW ZEALAND CA555/2008 [2009] NZCA 321BETWEEN PHILIP SMITH Applicant AND THE ATTORNEY-GENERAL Respondent Hearing: 21 July 2009 Court: Hammond, Robertson and Baragwanath JJ Counsel: M R Bott for Applicant C T Curran for Respondent Judgment: 22 July 2009 at 4pmJUDGMENT OF THE COURT A The time for filing the case on appeal is extended to 31 August 2009. B The grounds of appeal are confined to those contained in the notice of appeal. C There is no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Baragwanath J) [1] The applicant seeks extension under r 43(2)(a) of the Court of Appeal (Civil) Rules 2005 until 31 August 2009 of the time for filing the case on appeal.[2] The application for judicial review seeks to challenge security classifications made against the applicant, a serving prisoner, over a number of years. They are alleged to have been made unlawfully so as to result in excessive detention in maximum security. It further challenges the making of a psychopathy report which is alleged to have occurred without the applicant's informed consent. [3] The High Court judgment dismissing the application was delivered on 9 July 2008 and a notice of appeal was filed within time on 1 September 2008. [4] The extension was sought owing to delay in resolving whether the applicant would be granted legal aid for the appeal. We were told that a decision has recently been made granting aid. [5] Mr Curran resisted the application on the grounds that the issues are now moot and will not place a real controversy before the Court and in any event a Court would be unlikely to grant relief. He further submitted that the claim in respect of the psychological testing should be treated as statute barred by analogy with the provisions of the Limitation Act 1950. [6] We are not persuaded that the appeal is necessarily so lacking in merit as to warrant the exercise of discretion against the applicant. We grant an extension of time for filing the case on appeal to 31 August 2009 but the grounds of appeal are confined to those contained in the notice of appeal. [7] There will be no order as to costs.Solicitors: Nat Dunning Law, Wellington for Applicant Crown Law Office, Wellington for Respondent