Wislang v Attorney-General [2022] NZCA 341 (28 July 2022)

Last Updated: 2 August 2022

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA624/2020 [2022] NZCA 341

	BETWEEN	MILES ROGER WISLANG Appellant
	AND	ATTORNEY-GENERAL OF NEW ZEALAND First Respondent WHITE ISLAND TOURS LIMITED Second Respondent WORKSAFE NEW ZEALAND Third Respondent

CA225/2021
	BETWEEN	MILES ROGER WISLANG Appellant
	AND	ATTORNEY-GENERAL OF NEW ZEALAND First Respondent WHITE ISLAND TOURS LIMITED Second Respondent WORKSAFE NEW ZEALAND Third Respondent

Court:	Brown and Gilbert JJ
Counsel:	Appellant in Person K G Stephen and A M Piaggi for First Respondent G R Nicholson and R A Idoine for Second Respondent S V McKechnie and T J Bremner for Third Respondent
Judgment: (On the papers)	28 July 2022 at 10.30 am

JUDGMENT OF THE COURT

1. In CA624/2020 an extension of time is granted of 20 working days for the filing of the case on appeal and the lodging of an application for the allocation of a hearing date.
2. The application for an extension of time to appeal in CA225/2021 is declined.

100. There is no order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

• [1] Dr Wislang applies for two extensions of time:

(a) in CA624/2020, an appeal against the judgment of Grice J dismissing an application for judicial review,^[1] to file the case on appeal and apply for the allocation of a hearing date; and

(b) in CA225/2021 to file an appeal against the Judge’s subsequent costs decision.^[2]

The applications are opposed by all three respondents.

Relevant background

• [2] In December 2019 Dr Wislang commenced judicial review proceedings against the Attorney-General, White Island Tours Ltd (WIT) and WorkSafe New Zealand (WorkSafe) claiming that the Whakaari/White Island tragedy on 9 December 2019 would not have occurred had WIT been regulated in the manner Dr Wislang suggested. On 31 August 2020, part‑way through the hearing in the High Court at Wellington, Dr Wislang abandoned his claims against WIT but continued with his claims against the other respondents. Those claims were dismissed in the substantive decision.^[3]
• [3] In a subsequent decision on 2 December 2020 the Judge awarded costs to all three respondents.^[4]
• [4] Dr Wislang filed the appeal CA624/2020 against the substantive decision within time. His application to reduce security for costs was granted in part. He was directed to pay security for costs of $14,120. He did not seek to review that decision.
• [5] However, Dr Wislang failed to file the case on appeal or apply for a hearing date within three months of filing the notice of appeal, as required by r 43 of the Court of Appeal (Civil) Rules 2005 (the Rules). Consequently, on 23 February 2021 CA624/2020 was deemed abandoned by operation of r 43. His application for an extension of time to comply with r 43 (the subject of this judgment) was filed on 15 March 2021.
• [6] Dr Wislang’s application under r 29A of the Rules for an extension of time to appeal against the costs decision was filed on 23 April 2021, some three months out of time. On 10 May 2021 a direction was made that the two applications be dealt with together.
• [7] On 11 June 2021 Dr Wislang was adjudicated bankrupt on a petition by WIT based on the unpaid costs order. Dr Wislang filed an appeal against that decision (CA351/2021). In a minute dated 25 August 2021, this Court directed that the current extension of time applications be deferred pending determination of Dr Wislang’s bankruptcy appeal or an earlier relevant determination of the Court.
• [8] Dr Wislang failed to comply with r 43 of the Rules in respect of CA351/2021 and consequently the bankruptcy appeal was deemed abandoned. An application by Dr Wislang for an extension of time to comply with r 43 in respect of that appeal was dismissed on 12 April 2022.^[5] As the bankruptcy appeal was at an end, Miller J directed that the current applications for extensions of time were to be determined and he allowed time for the parties to file further submissions on the extensions in light of Dr Wislang’s bankruptcy. The parties duly did so.

Relevant principles

• [9] The principles applicable to applications for an extension of time under r 43 are the same as those explained by the Supreme Court in Almond v Read in relation to r 29A.^[6] The ultimate question when considering the exercise of the discretion is what the interests of justice require. Factors identified as likely to require consideration include:^[7]

(a) the length of the delay;

(b) the reasons for the delay;

(c) the conduct of the parties, particularly of the applicant;

(d) any prejudice or hardship to the respondent or to others with a legitimate interest in the outcome; and

(e) the significance of the issues raised by the proposed appeal, both to the parties and more generally.

• [10] While the Court recognised that the merits of a proposed appeal may, in principle, be relevant to the exercise of the discretion to extend time, a decision to refuse an extension of time based substantially on that ground should be made only where the appeal is clearly hopeless. The lack of merit must be readily apparent.^[8]
• [11] In their joint submissions of 27 June 2022, the respondents drew attention to the potential question of law as to whether an application for judicial review was a purely personal claim for the purposes of s 101 of the Insolvency Act 2006 and hence not an asset or right which passes to the Official Assignee on adjudication. They submitted that given the substantial delay in this matter it was preferable for the Court to substantively determine Dr Wislang’s extension applications without further delay. We accept that course is desirable. Accordingly we determine the two applications by reference to the Almond v Read principles.

CA624/2020 — discussion

• [12] The respondents contend that the appeal is totally without merit. In Almond v Read the Supreme Court emphasised that the power to grant or refuse an extension of time should not be used as a mechanism to summarily dismiss apparently weak appeals, observing that consideration of the merits of a proposed appeal in the context of such an application must necessarily be relatively superficial.^[9] While the reasoning in the substantive judgment^[10] would suggest that the prospects of success on the appeal are slim, we cannot be satisfied on our limited consideration of the case that the appeal crosses the high threshold of insufficient merit contemplated in Almond v Read.
• [13] Turning then to the recognised factors, the length of the delay was relatively short. Once allowance is made for the Christmas vacation, pursuant to r 43(4) of the Rules, the specified period expired on 23 February 2021. The application for an extension of the r 43(1) period was filed on 15 March 2021. So the extension required was of no more than three weeks. In an affidavit dated 22 April 2021 Dr Wislang deposed that he was suffering from a persisting disability and claimed that the proceedings had caused him stress requiring medical treatment. In their joint submissions of 11 June 2021, the respondents respond that Dr Wislang’s claimed disability is not supported by independent evidence and has not justified the delay.
• [14] Dr Wislang contends that there is an element of public interest in the appeal. He emphasises the public importance of adventure activity safety issues, identifying a persisting lack of specific safety standards in this respect, the significance of which has not been diminished by the passage of time. The respondents reject the suggestion that there is public importance associated with the appeals, noting that Grice J observed that Dr Wislang’s claim was misconceived from the outset.^[11]
• [15] Similarly, the parties have opposing views on the issue of prejudice for the respondents associated with the grant of an extension of time. The respondents further rely on disentitling conduct on the part of Dr Wislang, citing the filing of interlocutory applications at very late stages in the proceeding, the abandonment of the claim against WIT part‑way through the hearing and what is described as his repeated failure to engage with correspondence from the Registry of this Court.
• [16] We consider that the application when filed was finely balanced. Since then, however, almost 18 months have elapsed, albeit this was a consequence of procedural directions arising from the bankruptcy appeal.
• [17] We consider that in the interests of justice Dr Wislang should have one final opportunity to comply with r 43 of the Rules. Consequently we find that an extension of time is appropriate, albeit of suitably short duration given that Dr Wislang has had ample time to prepare the case in the intervening period. Therefore, we direct that there will be an extension of time for 20 working days from the date of this judgment for the filing of the case on appeal and the lodging of an application for the allocation of a hearing date. In accordance with the decision of the Deputy Registrar, security for costs will be payable 10 working days after the date of this judgment granting an extension of time.

CA225/2021 — discussion

• [18] The application for an extension of time to appeal against the costs decision was not filed until some three months after the appeal period had expired. We do not consider that an adequate explanation has been provided for a delay of that duration.
• [19] In any event, the foreshadowed grounds of appeal include contentions that the award of costs included an award of indemnity costs which was unjustly excessive and wrongly punitive, and that the proceeding was brought solely in the public interest and consequently Dr Wislang should not have been unfairly penalised in costs. However, as we explained in our judgment on Dr Wislang’s application for an extension of time to comply with r 43 in respect of his bankruptcy appeal (CA351/2021):^[12]

[14] ... Dr Wislang did not argue that his claim was brought in the public interest, such that costs should be reduced, and the Judge held in any event that there was no public interest element involved. Furthermore Dr Wislang’s assertion that indemnity costs were awarded is not correct. The WIT award was at scale with an uplift to reflect Dr Wislang’s failure to accept a Calderbank offer made at a point where Dr Wislang had already been warned by the Court that his claim as pleaded faced difficulties. Dr Wislang waited until his oral argument before abandoning his claim, giving WIT no opportunity to avoid or mitigate the costs it was incurring.

(Footnotes omitted.)

• [20] We consider that Dr Wislang’s proposed appeal against the order for costs has no realistic prospects of success. In any event, the balancing of the Almond v Read factors weighs heavily in the favour of the respondents. Consequently the application for an extension of time to appeal is declined.

Result

• [21] In CA624/2020 an extension of time is granted of 20 working days for the filing of the case on appeal and the lodging of an application for the allocation of a hearing date.
• [22] The application for an extension of time to appeal in CA225/2021 is declined.
• [23] As there has been mixed success on the applications there is no order for costs.

Solicitors:
Crown Law Office, Wellington for First Respondent
Anthony Harper, Auckland for Second Respondent
Simpson Grierson, Wellington for Third Respondent

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^[1] Wislang v Attorney-General [2020] NZHC 2588 [Substantive decision].

^[2] Wislang v Attorney-General [2020] NZHC 3172 [Costs decision].

^[3] Substantive decision, above n 1, at [129].

^[4] Costs decision, above n 2, at [57]. In relation to the Attorney-General and WorkSafe the Judge awarded 2B costs. In relation to WIT the judge awarded 2B costs with a 50 per cent uplift. The amount awarded to WIT was $62,240.50.

^[5] Wislang v White Island Tours [2022] NZCA 126.

^[6] Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801; and see Yarrow v Westpac New Zealand Ltd [2018] NZCA 601 at [4].

^[7] Almond v Read, above n 7, at [38].

^[8] At [39(c)].

^[9] At [39(c)].

^[10] Substantive decision, above n 1.

^[11] Costs decision, above n 2, at [20].

^[12] Wislang v White Island Tours Ltd, above n 6.