MCCORKINDALE v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2018] NZCA 512

MCCORKINDALE v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2018] NZCA 512[21 November 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA616/2017[2018] NZCA 512BETWEEN ROBERT JOHN MCCORKINDALEApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 19 November 2018Court: Cooper, Winkelmann and Gilbert JJCounsel: M Starling for ApplicantM J McKillop for RespondentJudgment: 21 November 2018 at 9.30 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal must be brought within 10 working days of the date of deliveryof this judgment.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] Mr McCorkindale applies under r 29A of the Court of Appeal (Civil) Rules2005 (the Rules) for an extension of time in which to appeal against a public protectionorder made against him in the High Court at Christchurch in a judgment delivered byGendall J on 17 October 2017.11 Chief Executive of the Department of Corrections v McCorkindale [2017] NZHC 2536.[2] The ultimate question as to whether the discretion to extend time should beexercised depends on what the interests of justice require. The Supreme Courtsummarised the factors likely to require consideration in Almond v Read.2These include the length of the delay, the reasons for the delay, the conduct ofthe parties, any prejudice occasioned by the delay and the significance of the issuesraised by the proposed appeal.[3] We are satisfied that an extension of time should be granted in this case inthe interests of justice for reasons that can be briefly stated.[4] The proposed appeal concerns Mr McCorkindale's liberty and is obviously ofconsiderable significance to him. The proposed appeal may also have widersignificance and raise matters of public importance regarding the interpretation andoperation of the Public Safety (Public Protection Orders) Act 2014.[5] Mr McCorkindale filed a notice of appeal against the decision on30 October 2017, two weeks after the judgment was delivered. Security for costs wasdispensed with on 26 January 2018. Due to counsel error, the case on appeal was notfiled within the three-month period provided in r 43 of the Rules. Although counselapplied for a hearing date on 21 February 2018, the appeal was treated as beingabandoned on 22 February 2018 because the case on appeal had not been filed.Notice of this result was given on 20 March 2018. Mr McCorkindale applied for anextension of time under r 43 on 26 April 2018 but this was not actioned because it wasnot accompanied by the filing fee or any application for a fee waiver. Against thisbackground, Mr McCorkindale filed his present application for an extension of timeto lodge a new appeal on 27 July 2018.[6] This procedural history demonstrates that Mr McCorkindale has beenattempting to exercise his right of appeal since the judgment was first delivered.He has been incarcerated throughout this time and is not personally responsible forthe procedural defaults that have necessitated the present application. His counselaccepts full responsibility for these defaults. Although any appeal is now well out of2 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38].time, we are satisfied that the delay has been satisfactorily explained and should notcount against Mr McCorkindale.[7] Mr McCorkindale filed his initial notice of appeal promptly. The respondenthas been aware from the outset of Mr McCorkindale's wish to appeal againstthe judgment and the grounds of his proposed appeal. The respondent is unable topoint to any prejudice arising from the delay. The respondent acknowledges that earlyclarification of whether Mr McCorkindale is lawfully subject to a public protectionorder is required.[8] For these reasons, we conclude that the interests of justice are best served bygranting the extension of time sought.Result[9] The application for an extension of time to appeal is granted.[10] The appeal must be brought within 10 working days of the date of delivery ofthis judgment.Solicitors:Crown Law Office Wellington, for Respondent