Attorney-General v Howard
[2010] NZCA 58
•11 March 2010
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IN THE COURT OF APPEAL OF NEW ZEALAND
CA252/2009
[2010] NZCA 58BETWEENTHE ATTORNEY-GENERAL
Appellant
ANDJOHN HOWARD
Respondent
Hearing:20 October 2009 and 2 December 2009
Court:William Young P, Glazebrook and Robertson JJ
Counsel:C R Gwyn for Attorney-General
F Joychild for Respondent
A S Butler for Human Rights Review Tribunal
Judgment:11 March 2010 at 11.00 am
JUDGMENT OF THE COURT
A The appeal (CA252/2009) is dismissed for want of jurisdiction.
BCosts for a standard appeal on a Band A basis plus usual disbursements are awarded to the respondent.
C The application for leave to appeal is declined.
DCosts on the application are awarded to the respondent in accordance with the High Court Rules on a 2B basis.
____________________________________________________________________
REASONS
Glazebrook J [1]
William Young P [165]
Robertson J [183]GLAZEBROOK J
Table of Contents
Para No
Introduction [1]
The legislative framework [9]
Background [17]
Is leave required to bring the appeal? [57]Attorney-General’s submissions [57]
Mr Howard’s submissions [61]
Discussion [64]Leave [77]
Attorney-General’s submissions [77]
Mr Howard’s submissions [78]
Issues [79]Can defects in service be remedied? [81]
Attorney-General’s submissions [81]
Mr Howard’s submissions [88]
My assessment [96]Can defects in service be waived or otherwise overlooked? [116]
Attorney-General’s submissions [116]
Mr Howard’s submissions [117]
My assessment [118]Must the Tribunal be served with interlocutory applications? [142]
Attorney-General’s submissions [142]
Discussion [143]Can consent orders of Associate Judges be set aside by
the High Court? [148]Attorney-General’s submissions [148]
Discussion [150]Should the consent orders have been set aside? [152]
Should leave to appeal be granted? [157]
Result [158]
Introduction
[1] On 16 June 2008 the Attorney-General filed a notice of appeal in the High Court against a decision of the Human Rights Review Tribunal (the Tribunal) under the Human Rights Act 1993 (HRA). In that decision the Tribunal declared that the age limits for eligibility for vocational rehabilitation, as then set out in s 85 and cl 52 of Schedule 1 of the Injury Prevention Rehabilitation and Compensation Act 2001, were inconsistent with s 19 of the New Zealand Bill of Rights 1990.
[2] While the notice of appeal against the Tribunal’s decision was filed in the High Court within the timeframe set out in s 123(4) of the HRA, it was not served on Mr Howard within that specified time frame. Nor was it filed with the Tribunal.
[3] On 1 July 2008 Associate Judge Gendall granted the Attorney-General’s application, purportedly under the then r 5 of the High Court Rules, to regularise the failings in service of the notice of appeal.
[4] On 16 February 2009 Mr Howard applied to the High Court to set aside the Associate Judge’s order. On 7 May 2009 Joseph Williams J, in Attorney-General v Howard,[1] granted that application and dismissed the appeal.
[1] Attorney-General v Howard (2009) 19 PRNZ 324 (HC).
[5] The Attorney-General now wishes to appeal against Joseph Williams J’s decision. The Attorney-General maintains that there is a right of appeal under s 66 of the Judicature Act 1908 or alternatively that s 67 of that Act applies. Mr Howard’s position is that leave is required under s 124 of the HRA.
[6] If leave is required, the parties have asked that we exercise our power as High Court judges to decide the leave issue. As the question of leave is so tied into the issue of whether the appeal has merit, this has been fully argued. Therefore, if leave is required and granted, both parties wish us to decide the appeal.
[7] The matters that fall to be decided are:
(a)Is leave required to bring the appeal?
(b)If so, should leave be granted?
(c)If leave is required and granted, should the appeal be allowed?
[8] Before I deal with these issues, I set out the legislative framework and the background in more detail.
The legislative framework
[9] Sections 66 and 67 of the Judicature Act provide:
66 Court may hear appeals from judgments and orders of the High Court
The Court of Appeal shall have jurisdiction and power to hear and determine appeals from any judgment, decree, or order save as hereinafter mentioned, of the High Court, subject to the provisions of this Act and to such rules and orders for regulating the terms and conditions on which such appeals shall be allowed as may be made pursuant to this Act.
67 Appeals against decisions of High Court on appeal
(1)The decision of the High Court on appeal from an inferior court is final, unless a party, on application, obtains leave to appeal against that decision—
(a)to the Court of Appeal; or
(b)directly to the Supreme Court (in exceptional circumstances as provided for in section 14 of the Supreme Court Act 2003).
(2)An application under subsection (1) for leave to appeal to the Court of Appeal must be made to the High Court or, if the High Court refuses leave, to the Court of Appeal.
(3)An application under subsection (1) for leave to appeal directly to the Supreme Court must be made to the Supreme Court.
(4)If leave to appeal referred to in subsection (1)(a) is obtained, the decision of the Court of Appeal on appeal from the High Court is final unless a party, on application, obtains leave to appeal against that decision to the Supreme Court.
(5)Subsections (1), (3) and (4) are subject to the Supreme Court Act 2003.
[10] Section 124 of the HRA relates to appeals from the High Court to this Court on questions of law. In relevant part it provides:
124 Appeal to Court of Appeal on a question of law
(1) Any party to any proceedings before the High Court under this Act may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on a question of law arising in those proceedings:
Provided that, if the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.
(2) A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the High Court, or within such further time as that Court may allow, give notice of his or her application for leave to appeal in such manner as may be directed by the rules of that Court, and the High Court may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.
(3) Where the High Court refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the High Court or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that Court, for special leave to appeal to that Court, and the Court of Appeal may grant leave accordingly if, in the opinion of that Court, the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision. ...
(6) The decision of the Court of Appeal on any application to that Court for leave to appeal shall be final.
[11] Section 123 of the HRA provides for appeals to the High Court from the Tribunal. It provides in relevant part:
123 Appeals to High Court
...
(4) Every appeal under this section shall be made by giving notice of appeal within 30 days after the date of the giving by the Tribunal in writing of the decision to which the appeal relates. ...
(8) Subject to the provisions of this Act, the procedure in respect of any such appeal shall be in accordance with the rules of Court.
(9) Notice of appeal shall not operate as a stay of proceedings in respect of the decision to which the appeal relates unless the Tribunal or the High Court so orders.
[12] Section 92K of the HRA sets a timeframe for a response by the Minister to declarations of inconsistency by the Tribunal:
92K Effect of declaration
(1) A declaration under section 92J does not—
(a)affect the validity, application, or enforcement of the enactment in respect of which it is given; or
(b)prevent the continuation of the act, omission, policy, or activity that was the subject of the complaint.
(2) If a declaration is made under section 92J and that declaration is not overturned on appeal or the time for lodging an appeal expires, the Minister for the time being responsible for the administration of the enactment must present to the House of Representatives—
(a)a report bringing the declaration to the attention of the House of Representatives; and
(b)a report containing advice on the Government's response to the declaration.
(3) The Minister referred to in subsection (2) must carry out the duties imposed on the Minister by that subsection within 120 days of the date of disposal of all appeals against the granting of the declaration or, if no appeal is lodged, the date when the time for lodging an appeal expires.
[13] As the appeal was filed before the new Rules came into force on 1 February 2009, the old High Court Rules applied. Rule 704 provided:
(1)This rule applies when a party has a right of appeal to the Court.
(2)An appeal must be brought, -
(a)if the enactment that confers the right of appeal specifies a period within which the appeal must be brought, within that period;
(b)in every other case, within 20 working days after the decision appealed against given.
(3)By special leave, the Court may extend the time prescribed for appealing if the enactment that confers the right of appeal—
(a)permits the extension; or
(b)does not limit the time prescribed for bringing the appeal.
(4)An application for an extension—
(a)must be made by an interlocutory application on notice to every other party affected by the appeal; and
(b)may be made before or after the expiry of the time for appealing.
[14] Rule 706(1) defined when an appeal is “brought”. It said:
(1) An appeal is brought when the appellant -
(a)files a notice of appeal in the High Court; and
(b)files a copy of the notice of appeal in the administrative office [the registry or office at which the decision-maker gave the decision appealed from]; and
(c)serves a copy of the notice of appeal on every other party directly affected by the appeal.
[15] Rule 717 provided:
717Decision-maker entitled to be heard on appeal
Unless the Court otherwise directs, at the hearing of an appeal the decision-maker, other than a District Court, is entitled to be represented and heard on all matters arising in the appeal.
[16] Rule 5 provided:
5 Non-compliance with Rules
(1) Where, in beginning or purporting to begin any proceeding or at any stage in the course of or in connection with any proceeding there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form, or content or in any other respect, the failure –
(a)Shall be treated as an irregularity; and
(b)Shall not nullify –
(i)The proceeding; or
(ii)Any step taken in the proceeding; or
(iii)Any document, judgment, or order in the proceeding.
(2) Subject to subclauses (3) and (4), the Court may, on the ground that there has been such a failure as is mentioned in subclause (1), and on such terms as to costs or otherwise as it thinks just, -
(a)Set aside, either wholly or in part, -
(i)The proceeding in which the failure occurred; or
(ii)Any step taken in the proceeding in which the failure occurred; or
(iii)Any document, judgment, or order in the proceeding in which the failure occurred; or
(b)Exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceeding generally as it thinks fit.
Background
[17] The Tribunal delivered its decision on 15 May 2008. By virtue of the operation of s 123(4) of the HRA, any appeal had to be “made” within 30 days of the date of the decision. On 16 June 2008 (the last day on which an appeal could be brought) the Attorney-General filed a notice of appeal in the High Court. A number of grounds of appeal were set out and judgment was sought from the High Court:
5.1 Reversing the findings of the Tribunal that:
5.1.1The age-related limits on rehabilitation amounted to disadvantage in terms of s 19(1) BORA both in respect of the plaintiff and generally;
5.1.2The plaintiff was able to bring the claim even though he is not a victim;
5.1.3The age-related limits were not a justified limit on the right to be free from discrimination under s 5 BORA; and
5.2Quashing the declaration.
[18] Due to an oversight, a copy of the appeal notice was not served on Mr Howard or the Tribunal on 16 June 2008, although a copy was sent by post to Mr Howard, who had represented himself before the Tribunal. On 19 June 2008, immediately on becoming aware of its oversight, the Attorney-General served a copy of the appeal on the Tribunal. A further copy was sent by email to Mr Howard.
[19] On the same day (19 June 2008), the Attorney-General filed an interlocutory application in the High Court asking for orders that the filing and service requirements under r 706 of the High Court Rules had been met and that the appeal had been validly brought. The application was said to be made in reliance on r 5 of the High Court Rules.
[20] On 25 June 2008, Ms Coleman, acting on behalf of the Attorney-General, spoke to Mr Howard about the appeal. He informed her that he had telephoned the Office of Human Rights Proceedings the week before about representation for the appeal but that he was still waiting for a reply. Mr Howard, however, agreed to file a joint memorandum asking for the orders regularising the appeal to be made by consent and asking for the directions conference, which was scheduled for 1 July 2008, to be adjourned.
[21] A draft memorandum was then sent to Mr Howard. He replied on 26 June 2008 with some suggested amendments which were incorporated. The resulting consent memorandum was filed that day. In that joint memorandum it was asserted that technical non-compliance with r 706, both in respect of failing to serve the notice of appeal on the Tribunal and on Mr Howard, could be remedied by the High Court using its powers under s 5 of the High Court Rules. In support the memorandum referred to Invercargill City Council v Hamlin,[2] Powell v Manchester Unity Friendly Society[3] and Ministry of Justice v Small.[4]
[2] Invercargill City Council v Hamlin (1994) 7 PRNZ 674 (CA).
[3] Powell v Manchester Unity Friendly Society (1995) 9 PRNZ 494 (HC).
[4] Ministry of Justice v Small (2005) 17 PRNZ 784 (HC).
[22] The parties also asked that the case management conference, scheduled for 1 July 2008, be adjourned for two weeks to allow Mr Howard to seek representation from the Office of Human Rights Proceedings. The cover sheet of the memorandum contained the following:
Judicial Officer: Unknown
Next Event Date: 15 July 2008
[23] In the meantime, on 25 June 2008, Ms Coleman had telephoned Ms Bell, at the Human Rights Commission, to inquire if the Commission had considered intervening in the appeal as Mr Howard was not legally represented. Ms Coleman told the Commission that there was an issue in the appeal regarding non-compliance with service obligations. Late in the afternoon of that same day, Ms Bell telephoned back to say that the Commission’s view was that the best solution may be for Mr Howard to be represented by the Office of Human Rights Proceedings.
[24] At 5.15 pm on 26 June 2008 Mr Hesketh, the Director of Human Rights Proceedings (the Director), emailed Ms Coleman to say that he had decided to represent Mr Howard. Mr Hesketh sought all relevant documentation and timetabling information. The email went on to say:
One matter about which I have a little, but not much, information, is that your Notice of Appeal may be deficient for being both out of time, and not properly served in accordance with the High Court Rules. As his counsel, my position about both of those matters at this stage is that any interlocutory application seeking leave to cure those defects will be opposed. I mention this now out of an abundance of caution. [Emphasis added]
[25] All documentation relating to the appeal, including the consent memorandum, was supplied about an hour later on the same day. The Director’s attention was drawn to the fact that the consent memorandum asked that the orders regularising the appeal be made by consent and that it sought an adjournment of the case management conference scheduled for 1 July 2008.
[26] The Director did not contact Ms Coleman between her sending this email on 26 June 2008 and 1 July 2008, the date of the scheduled case management conference. On the morning of 1 July 2008 Ms Coleman tried to contact the Director to ascertain whether he intended to oppose the orders sought. She called and left messages in his office and on his cellphone but he did not return her calls.
[27] We do not have any affidavit from Mr Hesketh explaining why he did not contact Ms Coleman or attend court on 1 July 2008. It might be, however, that he thought that the case management conference would be adjourned as had been requested in the consent memorandum. I note too that the date of 15 July 2008 was on the cover sheet of the consent memorandum sent to Mr Hesketh: see at [22] above.
[28] Ms Coleman did attend court on 1 July 2008. When she arrived, she was told that an appearance was not necessary as the orders sought had been made. This is understandable as neither the Director nor Crown counsel had informed the Court that the Attorney-General’s application was now likely to be opposed.
[29] Later that morning Ms Coleman received an email from the Deputy Registrar of the High Court confirming that the orders had been made. The email said:
I confirm the Joint Memorandum dated 26 June 2008 was today considered by Associate Judge Gendall and the following minute was made:
By consent:
(1) Orders are made as set out at paragraph 16.1 and 16.2 hereof.
(2) Call on 1 July 2008 vacated – appearances excused.
(3) New call scheduled for 15 July 2008 at 10.00 am.
[30] Ms Coleman forwarded a copy of that email to the Director for his information but heard nothing further from him until 9 July 2008 when she received an email. In that email Mr Hesketh noted that the High Court had made the remedial orders “so there is no need to dwell upon that”. The email went on to discuss certain procedural matters relating to the substantive appeal that could be included in a joint memorandum to the Court. A joint memorandum was drafted by Ms Coleman, signed by her and Mr Hesketh and filed on 10 July 2008. The issue of the validity of the orders made by Associate Judge Gendall regularising the appeal was not mentioned in the memorandum.
[31] On 7 August 2008, counsel for the Tribunal filed a memorandum questioning whether there was jurisdiction for the Court to make the orders under r 5. The Tribunal said that it had not been aware of the application to regularise the appeal proceedings, the consent memorandum or the orders made by Associate Judge Gendall until 24 July 2008.
[32] The Tribunal’s memorandum drew attention to authorities, not referred to in the consent memorandum, which appear to support the view that r 5 cannot be used to cure breaches of non-compliance with statutes, including the HRA, as opposed to the Rules: Dawson v Chief Executive Officer of the Ministry of Social Development & Anor,[5] Inglis Enterprises Ltd v Race Relations Conciliator,[6] Ta’ase v Victoria University of Wellington,[7] Russell v Attorney-General,[8] Cullen v Police,[9] Williamson v Williamson[10] and Director-General of Social Welfare v K.[11]
[5]Dawson v Chief Executive Officer of the Ministry of Social Development & Anor [2007] NZCA 94.
[6] Inglis Enterprises Ltd v Race Relations Conciliator (1994) 7 PRNZ 404 (HC).
[7] Ta’ase v Victoria University of Wellington (1999) 14 PRNZ 406 (HC).
[8] Russell v Attorney-General [1995] 1 NZLR 749 (HC).
[9] Cullen v Police (1999) 14 PRNZ 315 (HC).
[10] Williamson v Williamson (1998) 12 PRNZ 455 (HC).
[11] Director-General of Social Welfare v K (1998) 12 PRNZ 462 (HC).
[33] While the Tribunal acknowledged that it is not for the Tribunal to take an active involvement in the hearing of the appeal, it was submitted that it is appropriate in certain circumstances for the Tribunal to assist the Court: see Portage Licensing Trust v Auckland District Licensing Agency[12] and TVWORKS Limited v du Fresne.[13] It was for the purpose of assisting the Court that the Tribunal drew the attention of the Court to the authorities listed above as they concern the Court’s jurisdiction to entertain the appeal.
[12] Portage Licensing Trust v Auckland District Licensing Agency [1997] NZAR 374 (HC).
[13] TVWORKS Limited v du Fresne HC Wellington CIV-2007-485-2060, 13 March 2008.
[34] Further, the Tribunal noted that, if r 5 were found not to have been available to regularise this appeal, there would be issues in respect of s 92K of the HRA and the requirement for the Minister responsible for an enactment to bring to the attention of the House of Representatives a declaration of inconsistency made by the Tribunal, within 120 days of the date when the time for lodging an appeal expires, unless the Crown has brought an appeal. The Tribunal’s concern was that, if the appeal had not been properly brought, the responsible Minister’s obligation must be fulfilled by 14 October 2008.
[35] On 17 October 2008 the Attorney-General filed a memorandum in reply to the Tribunal’s memorandum. In that memorandum, he questioned the appropriateness of the intervention by the Tribunal in taking a “technical time limit point” not taken by the parties themselves. The memorandum also stated that the proper procedure for testing the validity of orders made by the Associate Judge was either by way of appeal to this Court or by review under r 61C of the High Court Rules (now r 2.3). The memorandum reiterated the Attorney-General’s position that r 5 was available to correct errors of service and submitted that the cases set out by the Tribunal in its memorandum were distinguishable.
[36] On that same day (17 October 2008) Mr Howard’s counsel, in a memorandum, took formal issue for the first time with the making of the consent orders, although I note that his counsel had indicated his likely opposition to any application to regularise the defects in service on 26 June 2008: see at [24] above.
[37] On 21 October 2008, the Tribunal filed a memorandum reiterating that the Tribunal had no interest in the substantive outcome of the case. Its sole concern had been to ensure that the Court was fully informed as to the jurisdictional question raised in the Tribunal’s earlier memorandum and to ensure that neither the parties nor the Court would be embarrassed if it later transpired that the Court had no jurisdiction to determine the appeal as a result of the time-limit issue.
[38] In that regard, counsel for the Tribunal set out his understanding that, in the event that the appeal is found to have been made out of time, the Court lacks jurisdiction to extend the time limit specified in s 123(4) of the HRA even with the consent of the respondent. If that were the case, neither Mr Howard’s consent nor Mr Howard’s counsel’s failure to raise the issue in the memorandum for the first case management conference dated 10 July 2008, would render the appeal valid. The Court would still lack jurisdiction to hear the appeal outside the time limit: see Morris v Templeton.[14]
[14] Morris v Templeton (2000) 14 PRNZ 397 (CA) at [14] and [15].
[39] Counsel for the Tribunal then went on to make some comments about s 92K, including drawing the Court’s attention to the different language in s 92K (“lodging” an appeal) as against the language in s 123. He suggested that a question arises as to whether the use of the word “lodging”, in reference to an appeal against a declaration of inconsistency, might assist in understanding the meaning of how and when an appeal is “made” more generally for the purposes of s 123(4) of the HRA. In that regard, counsel for the Tribunal notes that the word “lodge” in respect of legal documents typically refers to filing in court. It also said that the use of the word “expires” in s 92K could suggest that a definite time limit within which an appeal is to be made was intended. Otherwise, the Minister would be unsure as to when the 120 days commences.
[40] On 25 November 2008 Miller J directed that there would be a further conference in the week of 15 December 2008 to consider whether the “jurisdiction issue” should be heard together with, or separately from, the substantive appeal.
[41] On 2 December 2008, the Attorney-General filed a memorandum saying that he considered that the issue, of whether the High Court was prevented from hearing the appeal because the notice of appeal was served on Mr Howard and the Tribunal several days outside the 30 days specified in s 123(4) of the HRA, should be dealt with at the same time as the substantive appeal. It was said that such an approach will be more efficient in terms of judicial resources as some of the issues, including public interest issues, are likely to overlap.
[42] The Attorney-General also commented on the effect of s 92K of the HRA. It was submitted that s 92K can be interpreted as requiring the Minister to report to Parliament within 120 days of the High Court’s decision as an appeal has been “lodged” and that appeal will not be “disposed of” until the High Court rules on the limitation issue and/or the substantive appeal. In any event, the Attorney-General pointed out that the Government has already addressed the matters raised in the declaration by enacting the Injury Prevention Rehabilitation and Compensation Amendment Bill (No 2).
[43] By memorandum of 15 December 2008, Mr Hesketh on behalf of Mr Howard, stating his firm view that the “limitation issue” raised in the appeal should be dealt with separately from the appeal. The Tribunal filed a memorandum the next day indicating that the better view was that the “jurisdictional issue” ought to be determined prior to the hearing of the substantive appeal.
[44] On 17 December 2008 at a telephone conference, Miller J directed that the “jurisdiction” issue be heard separately from the substantive appeal.
[45] On 16 February 2009, a formal application was filed on behalf of Mr Howard for the High Court to set aside the Associate Judge’s order on the basis that r 5 of the High Court Rules was not available to cure the defect in giving notice of the appeal as required by s 123(4) of the HRA.
[46] It was asserted in the application that the joint memorandum of 26 June 2008 seeking the orders by consent did not put the relevant law before the Court making the orders as the authorities indicate that r 5 cannot be used to cure the type of defect that was present in this case. The application was said to be made in reliance on “the inherent jurisdiction of the High Court” and on the authorities referred to, of which it was said that Mr Howard, as a lay litigant, could not be expected to have had knowledge. It was also noted that the application to regularise the appeal had been made without notice to the Tribunal. It was said that, had Mr Howard known this, he would not have consented to the Attorney-General’s application to regularise the appeal.
[47] An affidavit in support of the application was sworn by Mr Howard on the same date. He said in relevant part:
5When I was approached by Martha Coleman the lawyer for The Attorney General to sign the joint Memorandum I had still not made contact with the Director and so I required a paragraph be inserted that drew attention to the fact that I wished to be represented by the OHRP but hadn’t been able to discuss this with them yet.
6I have since been advised by lawyers at the OHRP that the Human Rights Review Tribunal were not notified of the joint memorandum and application for orders that the appeal was validly bought and that its counsel has since drawn the court’s attention to many other cases that do not support the validating of an appeal not bought in time under the Human Rights Act.
7If I had been advised that the Human Rights Review Tribunal had not been notified of the application or memorandum and so had not had the opportunity to appear and be heard or of the fact that it is doubtful whether Rule 5 could be used to validate the appeal then I would never have signed the joint memorandum. I would never have consented to an order that the appeal was validly bought. At the time I signed I believed I had no choice but to consent on this point as the law was straightforward and the appeal could be validated. I also thought the Human Rights Review Tribunal had been notified and had not raised any contrary legal argument.
8As I was a lay litigant at the Tribunal the legal views of the Human Rights Review Tribunal were very important to me. I had relied on the Tribunal to get the law right to that point, not having been legally represented. I wanted and expected the Tribunal’s ongoing involvement. After all it was their alleged errors that I was being asked to defend so I expected them to be notified of every step.
9I ask the Court to set aside the orders made by consent, as I was consenting under mistaken beliefs, and for the matter of whether the appeal was validly bought to be argued in full. I oppose the application to validate the orders. The appeal was not bought in time. The law has now been amended to fix the discrimination and the Attorney General is not wanting to alter this. The appeal is theoretical only. I understand that there will be other cases they can argue their points in.
[48] On 18 February 2009 the Attorney-General filed a notice of opposition to Mr Howard’s application on the ground that there was no jurisdiction for the High Court to hear it. If there was jurisdiction to hear the application, it was asserted that the orders of 1 July 2008 were validly made because the service requirements arise out of the High Court Rules and not the HRA and Mr Howard had in any event waived compliance. Ms Coleman swore an affidavit in support on 18 February 2009 setting out the procedural history, which I have set out above.
[49] Mr Howard’s application came before Joseph Williams J on 19 February 2009. In his decision of 7 May 2008, the Judge set aside the consent order made by Associate Judge Gendall on 1 July 2008 and dismissed the Attorney-General’s appeal. He held that:
(a)Notwithstanding the process set out in s 26P of the Judicature Act for challenging decisions made by Associate Judges, the Court retains an inherent jurisdiction to set aside orders made by Associate Judges if the interests of justice so require.
(b)The requirement to serve the appeal on Mr Howard and to file the notice in the office of the Tribunal within the 30 days time limit is mandated by statute. The Court has no power to remedy a failure to serve the notice of appeal within the time period.
(c)Subject to the issue of the role of the Tribunal discussed below at [49](e), the time limit for service can be waived by a respondent. The Judge, in making this decision followed a line of authority starting with Gaynor v Lacy,[15] although expressing a preference for the views expressed in Morris v Templeton,[16] saying that he could not see how, even by consent, the parties can effectively amend the statute.
(d)In this case there was no waiver by Mr Howard. The statement in the email of 9 July 2008 that counsel for Mr Howard “would not dwell upon” the orders made was not sufficiently unequivocal to amount to a clear and unambiguous declaration that the point would no longer be taken under any circumstances.
(e)The Tribunal is entitled to be represented and heard at the hearing of the appeal under r 717 (now r 20.17) and is therefore a party to the appeal, which means it must be served with all interlocutory applications under r 243 (now r 7.22). In the absence of a contrary direction from the High Court limiting the role of the Tribunal, the Tribunal had to consent to any waiver of mandatory time frames and it did not do so.
[15] Gaynor v Lacy [1920] NZLR 235 (SC).
[16] Morris v Templeton (2000) 14 PRNZ 397 (CA).
[50] On 7 May 2009, the Attorney-General filed a notice of appeal in this Court, purportedly under s 66 of the Judicature Act, against the whole of the decision of Joseph Williams J. On that same day (7 May 2009), the Attorney-General also (in the High Court) sought leave to appeal under both s 67 of the Judicature Act and under s 124 of the HRA. In respect of the latter, leave was also sought to appeal out of time.
[51] The grounds of appeal in this Court were that the High Court erred:
1.1In exercising its inherent jurisdiction to set aside the orders of an Associate Judge made by consent;
1.2In finding that the respondent, either personally or through his solicitor, had not waived the appellant’s non-compliance with the service requirements;
1.3In finding that the Tribunal was a party to the appeal; and
1.4In finding that the “service” requirements, that is: the requirement under r 706(1)(b) (nor r 20.6(1)(b)) to file a copy of the notice of appeal in the office of the Tribunal; and the requirement under r 706(1)(c) (now r 20.6(1)c)) to serve it on the respondent, arise under the Human Rights Act 1993 (HRA), rather than under the High Court Rules, and that therefore non-compliance with the service requirements could not be regularised by r 5 (now r 1.5) of the High Court Rules.
[52] On 20 October 2009 this Court heard argument on whether the appeal was properly brought under s 66 of the Judicature Act or whether leave was required. Both Mr Howard and the Attorney-General at that hearing asked that we deal with the leave questions by exercising our jurisdiction as judges of the High Court under s 57(4) of the Judicature Act, if we decided that leave was required.
[53] Given the agreement of the parties and the time that has already passed since the Tribunal’s decision, we agreed to determine the leave questions were it necessary to do so. Counsel were given leave to file further memoranda on whether leave should be granted and a further hearing was convened on 2 December 2009 to hear argument on those submissions.
[54] In a memorandum filed on 8 October 2009 the Tribunal said that it abided the decision of the Court on the jurisdictional issues as to whether leave was required to bring the appeal and, if so, whether this is under s 67 of the Judicature Act or s 123 of the HRA. This position was confirmed by Mr Butler at the hearing on 20 October 2009. At the hearing on 2 December 2009, Mr Butler confirmed that the Tribunal also took no position on the question of whether leave should be granted.
[55] The Tribunal, in its memorandum of 8 October 2009, however, requested permission to appear and make submissions on the substantive appeal. The Tribunal’s position is (relying by analogy on McGechan J’s remarks in Moonen v Broadcasting Standards Authority[17]) that it is not a “party” to the appeal. It says, however, that it does have a right to be served with all relevant documents pertaining to the appeal so that it can determine if the matters raised were ones on which it was entitled to make submissions. It sees itself as having a legitimate interest in the procedural rules pertaining to time limits for appeals from its decisions. It stated its position (in relevant part) as follows:
4.To reiterate the point made [in] its memorandum dated 16 July 2009, the Tribunal takes no view on the jurisdictional issues identified above [whether or not the appeal was governed by s 66 of the Judicature Act]. Nor does it have any interest in protecting the substantive decision under appeal. The Tribunal’s sole concern here is with clarifying the rules governing procedure for an appeal against one of its decisions. The Tribunal is one which is designed to be open and accessible, especially to lay litigants. In order to achieve this, it is necessary for the participants in the Tribunal’s processes to operate with the benefit of clear rules governing its procedures, including rules pertaining to when and how an appeal of one of its decisions can be made. This is underpinned by the Tribunal’s obligations, in exercising its powers and functions, to act in accordance with the principles of natural justice, in a manner that is fair and reasonable, and according to equity and good conscience (section 105 of the HRA).
5.The Tribunal accordingly abides whatever decision is reached by the Court on the jurisdictional issues before it. However, in the event that the Court considers that an appeal without leave has been properly brought before the Court, or sees fit to grant leave to appeal, counsel requests that they be permitted to appear and make submissions on the substantive issues raised by the appeal.
[17] Moonen v Broadcasting Standards Authority (1995) 8 PRNZ 335 (HC) at 337.
[56] I now turn to a consideration of the first issue identified at [7]; whether leave is required to bring the appeal.
Is leave required to bring the appeal?
Attorney-General’s submissions
[57] Ms Gwyn, for the Attorney-General, submits there is a right of appeal under s 66 of the Judicature Act because the decision under appeal finally determines the proceeding: Association of Dispensing Opticians of New Zealand Inc v Opticians Board.[18]
[18]Association of Dispensing Opticians of New Zealand Inc v Opticians Board [2000] 1 NZLR 158 (CA).
[58] Further, in her submission, the Attorney-General would suffer forensic disadvantage in the circumstances of this case if leave were required before the appeal could be heard by this Court: Friends of Pakiri Beach v McCallum Bros.[19] The forensic disadvantages the Attorney-General would suffer if the appeal was governed by s 124 of the HRA are said to be:
(a)First, by avoiding the s 26P procedure, Mr Howard would deprive the Attorney-General from having the right to have the issue of the validity of the consent order dealt with by this Court. Instead, any consideration by this Court would be subject to leave.
(b)Second, since any appeal to this Court under s 124 of the HRA is limited to questions of law only, the Attorney-General may be deprived of the ability to challenge the whole of the finding in respect to waiver. However, since the issue of waiver was never before the Tribunal, a direct right of appeal does not contravene the scheme of the HRA to permit only one appeal on issues of fact.
(c)Third, the time for the filing of any appeal is reduced, since appeals under s 124 of the HRA must be filed within 21 days rather than within 20 working days under the Court of Appeal rules.
[19] Friends of Pakiri Beach v McCallum Bros [2008] NZCA 87, [2008] 2 NZLR 649 at [23].
[59] Ms Gwyn’s next submission is that s 124 of the HRA does not apply to appeals arising from matters that were not before the Tribunal. In this case the application before Joseph Williams J, concerning as it did the interpretation of s 123(4) of the HRA, did not arise out of any matter over which the Tribunal had jurisdiction. It is not therefore a decision governed by s 124 of the HRA.
[60] If the Court were to hold that s 66 does not apply, then the Attorney-General submits that the appeal should be dealt with under s 67 of the Judicature Act, to ensure that findings of fact made for the first time by the High Court can be considered by this Court.
Mr Howard’s submissions
[61] On behalf of Mr Howard, Ms Joychild submits that the HRA is a code. The appeal against the decision of Joseph Williams J is therefore governed by s 124 of the HRA. In Ms Joychild’s submission, all parts of the High Court decision on any appeal should be considered as parts of a proceeding under the HRA. It is impracticable, cumbersome and strained to divide them and give them different appeal routes. If appeals against all (or some) procedural matters in the High Court were to be under the Judicature Act then, in her submission, this would be articulated in the HRA. The HRA does articulate where procedural provisions other than the HRA apply: see ss 123(8) and 124(3) where the HRA specifies the circumstances in which the High Court and the Court of Appeal rules apply.
[62] Ms Joychild submits that the Attorney-General is trying to gain a forensic advantage that would not otherwise be open to him by trying to reinstate the consent orders made by Associate Judge Gendall. This is despite the fact that the Attorney-General must bear considerable responsibility for the fact that a consent was signed by the lay litigant Mr Howard on the mistaken understanding that the law was settled, that the Court was empowered to make the consent orders and that the Tribunal had been notified of the application and the consent memorandum prior to the Court making the orders.
[63] By insisting on trying to reinstate the consent orders Ms Joychild points out that the Attorney-General avoids the otherwise fatal barrier that this Court cannot hear appeals on questions of fact. In her submission, the finding there had not been a waiver was a finding of fact. The Attorney-General also avoids the operation of the 21 day rule under s 124 of the HRA and the additional barrier of persuading the Court to grant him leave to appeal out of time, given that he is seven days late in filing his application for leave to appeal.
Discussion
[64] In Dispensing Opticians, this Court recognised that, despite the apparent breadth of s 66 of the Judicature Act, there are a number of situations where it is inapplicable. This Court said:
[24] As 26 Halsbury’s Laws of England (4th ed) para 501 notes: “The terms ‘judgment’ and ‘order’ in the widest sense may be said to include any decision given by a court on a question or questions at issue between the parties to a proceeding properly before the court.” But, as with “decision”, the context is all-important. First, s 66 itself qualifies the application of the section by continuing, “save as hereunder mentioned and “subject to the provisions of this Act and to such rules ... as may be made pursuant to this Act”. Section 67 goes on to confine appeals from determinations of the High Court on appeals from inferior Courts to those where leave is given.
[25] Second, there are numerous cases where, because of the character of the decision sought to be appealed, the scheme of the relevant provisions of the statutes and rules and underlying policy considerations, particular decisions of the High Court have been held to fall outside that composite expression for the purposes of s 66. Thus, the section does not confer jurisdiction to appeal in criminal matters (R v B [1995] 2 NZLR 172). Criminal appeals are provided for in the Crimes Act 1961 and it cannot have been intended that the general appeal jurisdiction of s 66 should also apply.
[26] Next, there are cases where to allow an appeal would be inconsistent with the object and scheme of particular provisions of the statute or the rules. In Seamar Holdings Ltd v Kupe Group Ltd [1995] 2 NZLR 274, where the rule (R 61C(6)) provided that except by leave of a High Court Judge “no appeal shall lie” from the review of a Master’s decision, the Court held that to permit an appeal from the judgment refusing leave would be to circumvent the very object of R 61C(6) of the High Court Rules and would result in the anomalous situation in which there could be no appeal without leave from the substantive decision but appeal as of right on the incidental procedural matter.
[65] The issue in Dispensing Opticians was whether certain interlocutory rulings of the High Court could be appealed against. The court held that the following principles apply where a party wishes to appeal against an interlocutory decision:
[36] We are inclined to the view that the broad classification of “decision” suggested in Winstone [Pulp International Ltd v Attorney-General CA175/99 30 August 1999] reflecting as it does similar considerations of the scheme and object of the relevant provisions and underlying policy and sound practice may be a helpful starting point. In that regard rulings made either in the course of the hearing of the proceeding (using that term in a broad sense, including for example an adjournment application), or as part of the trial conduct or management process would not ordinarily be susceptible to interlocutory appeal. On the other hand rulings which have some substantive effect on rights and liabilities in issue would be. Obviously the boundary lines will not be cut and dried and, as seen in Winstone, particular cases may fall into an exceptional category but that classification may be helpful at least as a matter of general approach.
[66] Thus, in order to be appealable, an interlocutory ruling has to have some substantive effect on rights and liabilities. Whether or not an interlocutory order can be appealed (even if it does have some substantive effect on rights and liabilities) will, however, depend on the statutory context. For example, in Comalco New Zealand Ltd v Television New Zealand Ltd,[20] it was held that s 19 of the Broadcasting Act 1989, (which provided that any determination of the High Court on any appeal shall be final), meant that there was no appeal right under s 66 of the Judicature Act in relation to any “ancillary or interlocutory matter”. The Court, in Comalco, noted that it would be extraordinary of there were a right of appeal on interlocutory matters but not on the substantive decision. The Court referred in support to Murphy v Murphy[21] (which is also discussed in Dispensing Opticians[22]).
[20] Comalco New Zealand Ltd v Television New Zealand Ltd [1997] NZAR 145 (CA) at 146.
[21] Murphy v Murphy [1989] 1 NZLR 204 (CA).
[22] At [27].
[67] Comalco[23] was applied in The General Manager Auckland Central Remand Prison v Mailley[24] with regard to costs in a habeas corpus application. Similar reasoning had also been applied by this Court in relation to costs in Hawthorne v Cox,[25] relying on the specific statutory provisions relating to appeals under the Care of Children Act 2004. This Court said:
[14] Taking the CCA first, s 145(1)(b) requires leave of this Court against any order “made on appeal” from a lower court decision. Any costs orders on appeal are not made pursuant to any proceedings that are separate from the appeal. Indeed, the issue of costs is inextricably tied to the appeal from the lower court decision. We thus consider that any costs order is one “made on appeal.” This means that, under s 145(1)(b), any appeal against such orders is only by leave of this Court.
[15] In terms of principle, it would be anomalous for there to be an automatic right of appeal against a discretionary costs order where an appeal against the substantive decision arises only with leave. Indeed, if there is an automatic right of appeal, it could arise in cases where there is no right of appeal at all from the High Court decision on the substantive matter. Further, costs appeals can in some cases involve a challenge to the findings of the High Court on the substantive appeal – see for example the issue highlighted in the proposed appeal in this case at [7](c).
[23] Comalco New Zealand Ltd v Television New Zealand Ltd [1997] NZAR 145 (CA) at 146-147.
[24]The General Manager Auckland Central Remand Prison v Mailley [2009] NZCA 314 at [25] ‑ [25].
[25] Hawthorne v Cox [2008] NZCA 146.
[68] I am conscious that Pakiri Beach may appear to be a decision (at least in relation to costs) that is at odds with Hawthorne (albeit in a different statutory context). In Pakiri Beach, this Court said that there were two possible appeal routes with regard to costs: under s 66 of the Judicature Act and in conjunction with any appeal against the substantive decision.[26] The issue of whether the particular statutory context at issue in Pakiri Beach overrode s 66 of the Judicature Act with regard to any appeal against costs does not appear to have been explicitly considered.
[26] At [48].
[69] The particular statutory context was, however, considered in Pakiri Beach with regard to whether there s 66 of the Judicature Act gave a right of appeal against the High Court decision striking out a number of the grounds of appeal. The Court held that s 66 of the Judicature Act did not give a right of appeal. On this point its reasoning is consistent with Comalco: see Pakiri Beach.[27] It was not explained why the Comalco reasoning does not apply to all ancillary matters including costs. It may be that the issue was overlooked in a case that was described as a procedural muddle.[28] In any event, in this case we are not dealing with costs but with an interlocutory matter. With regard to interlocutory matters, Pakiri Beach is consistent with Comalco. This aspect of Pakiri Beach was also applied recently in Chatha v Attorney-General.[29]
[27] At [20].
[28] At [73].
[29] Chatha v Attorney-General [2009] NZCA 594 at [18] – [23].
[70] In accordance with the principles discussed above, the Attorney-General’s contention that the appeal is brought as of right in this case under s 66 of the Judicature Act must fail. To adapt the words in Hawthorne,[30] it would be anomalous for there to be an automatic right of appeal against an interlocutory decision of the High Court where an appeal against the substantive decision only arises with leave. It would be even more anomalous if there is an absolute right of appeal against factual findings in interlocutory matters where appeals against the substantive decision are limited to questions of law (and usually only those of general or public importance).[31]
[30] At [15].
[31] See subss 124(2) and (3).
[71] I do not accept the Attorney-General’s submission that s 124 of the HRA is limited to the High Court’s determination of matters that arise from the Tribunal’s decision and not matters considered afresh in the High Court. Section 124(1) of the HRA is clear. Leave is required for “any appeal” to this Court against “any determination of the High Court” in proceedings under the HRA. It is difficult to read “any determination” as being limited to determinations on matters that were before the Tribunal. To do so would require words to be read into s 124(1).
[72] Even assuming one could legitimately read words into the section, it would, as Ms Joychild points out, create unnecessary complications and uncertainties. In this case, had the Attorney-General had his wish, the jurisdictional point would have been dealt with at the same time as the substantive appeal: see at [41] above. There would presumably have been one judgment with, if the Attorney-General’s submission were accepted, two different appeal paths. Further, the effect of the Attorney-General’s submission is that, if new evidence is admitted on appeal and findings made on that evidence in the course of judgment on the substantive appeal, then there is an appeal as of right against those new factual findings where appeal against the remainder of the judgment on the appeal is by leave only and limited to questions of law. This highlights the difficulties with the Attorney-General’s submission.
[73] The Attorney-General’s contention that there is a right of appeal under s 66 of the Judicature Act for matters considered for the first time in the High Court is also contrary to Murphy. In Murphy this Court held (by majority) that a decision on an application to the High Court under s 39(4) of the Matrimonial Property Act 1976 to hear fresh evidence on appeal (obviously a matter dealt with for the first time in the High Court) was not subject to appeal under s 66 (or s 67) of the Judicature Act. Any right of appeal (or in that case right to apply for leave to appeal) had to be found elsewhere.
[74] Before leaving this topic, I deal with the Attorney-General’s submission that it is a principle arising from the cases that a party should not suffer a forensic disadvantage through being deprived of a right of appeal under s 66 of the Judicature Act. I do not accept that submission. The comments as to forensic disadvantage made in Pakiri Beach[32] and, indeed, in Comalco,[33] were directed at the timing of the hearing of the particular application. The point being made was that a matter cannot have a separate right of appeal under the Judicature Act merely because it was heard separately from the substantive proceedings. The comments as to forensic disadvantage therefore favour Mr Howard and not the Attorney-General. There cannot be a difference in appeal paths in this case merely because the jurisdictional point was heard separately and not, as the Attorney-General had wished, in conjunction with the substantive appeal.
[32] At [20].
[33] At 147.
[75] Further, the so-called forensic disadvantages identified by the Attorney-General in this case are all functions of the statutory provisions limiting appeal rights to this Court to questions of law and providing for a truncated appeal period. They are thus a consequence of the legislative choice in favour of limited appeal rights and finality. Allowing an appeal as of right under s 66 of the Judicature Act would result in these legislative limitations being bypassed. That would amount to the Court overriding the HRA, which it cannot do.
[76] It follows from what I have said that I do not consider that s 67 of the Judicature Act has any application either. All aspects of appeals to this Court are subject to the leave requirements of s 124 of the HRA.
Leave
Attorney-General’s submissions
[77] In the event the Court holds that an appeal does not lie under s 66, Ms Gwyn submits that we should, exercising our jurisdiction as High Court Judges, grant leave to appeal and, if under s 124 of the HRA, leave to appeal out of time. In her submission all of the grounds of appeal (see at [51] above) raise issues capable of bona fide and genuine argument and which, by their general and public importance, ought to be determined by this Court. Further, the substantive appeal itself raises issues of general and public importance which support the granting of leave. That this was the first declaration under Part 1A of the HRA demonstrates the constitutional significance of the case. In Ms Gwyn’s submission, there are important issues outstanding (such as Mr Howard’s standing) even with the accident compensation legislation having been amended to accord with the declaration.
Mr Howard’s submissions
[78] Ms Joychild submits that the proposed appeal is without any prospect of success and leave to appeal should therefore not be granted. As to the underlying appeal, the fact that this is the first case under Part 1A gives it no particular status at all. The Tribunal went to pains to clarify that its decision was not setting out general legal propositions as it had not had the benefit of legal argument on both sides given that Mr Howard was a lay litigant. In any event the proceedings are moot as the legislation has been altered and now accords with the Tribunal’s decision.
Issues
[79] The main issue is whether the proposed appeal has any merit. In order to assess this, I discuss the following questions:
(a)Can defects in service be remedied?
(b)Can defects in service be waived or otherwise overlooked?
(c)Were defects in service waived in this case?
(d)Must the Tribunal be served with interlocutory applications?
(e)Can consent orders of Associate Judges be set aside by the High Court?
(f)Should the consent orders have been set aside?
[80] I then consider whether leave to appeal is justifiable in terms of s 124 of the HRA.
Can defects in service be remedied?
Attorney-General’s submissions
[81] Ms Gwyn submits that the requirement to file the appeal in the High Court derives from s 123(4) of the HRA. As this derives from statute she accepts that no extension of time is possible. In her submission, however, the service requirements arise under the High Court Rules and not the HRA. This means that a deficiency in service can be remedied under r 5 (now r 1.5).
[82] In Ms Gwyn’s submission, Inglis Enterprises Ltd v Race Relations Conciliator[34] was wrongly decided because it is predicated on the incorrect premise that a failure to take a step mandated by the High Court Rules is no different to a failure to comply with express statutory provisions, for example those set out in ss 72 and 73 of the District Courts Act 1947. Further, Inglis did not deal with service on the parties which at that time could, under the Rules, be effected after the appeal period.
[34] Inglis Enterprises Ltd v Race Relations Conciliator (1994) 7 PRNZ 404 (HC).
[83] Even if Inglis was not wrongly decided, Ms Gwyn submits that it should now be overruled because it was decided before the decision of this Court in Invercargill City Council v Hamlin[35] which held that r 5 could be used to cure defects in service obligations arising under the Rules.
[35] Invercargill City Council v Hamlin (1994) 7 PRNZ 674 (CA).
[84] Ms Gwyn points out that the phrase “giving notice of appeal” is commonly found in New Zealand statutes. In her submission, given the myriad of circumstances in which the phrase “giving notice of appeal” appears, it should be understood to mean filing a notice of appeal unless the particular statutory context or policy reasons dictate otherwise.
[85] Ms Gwyn submits that there were particular policy reasons in Mucelli v Government of Albania[36] for holding that both filing and service within the statutory timeframes were necessary. The case concerned the Extradition Act 2003 which provided for an expedited process for extraditions. The rules of court differed with respect to service as between England and Wales, Scotland and Northern Ireland. In Ms Gwyn’s submission, it was the need to have a uniform approach throughout the United Kingdom that led the majority to the view that the appeal notice had to be served as well as filed within the statutory timeframe.
[36] Mucelli v Government of Albania [2009] 1 WLR 276 (HL).
[86] Ms Gwyn also submits that the whole context of the HRA operates against an interpretation of the appeal provisions that would oust the jurisdiction of the courts to remedy issues of technical non-compliance. Hearings in the HRA often involve lay litigants and the proceedings are intended to be flexible and informal than in the courts: ss 105 and 106 of the HRA and the Human Rights Review Tribunal Regulations 2002. Further, following the introduction of the jurisdiction conferred by Part 1A of the HRA, Ms Gwyn submits that the inability for the Court to remedy technical non-compliance with the High Court Rules is at odds with the constitutional significance of decisions taken under the HRA.
[87] Ms Gwyn also submits that, if Joseph Williams J is correct that s 123(4) means that notice has to be given to all those with an interest in the appeal, then notice of appeal would also have to be given to the Human Rights Commission which, by virtue of s 92H of the HRA, has a right to appear and be heard on all appeals under the HRA and the Attorney-General in respect of appeals under Part 1A or Part 2 concerning a body referred to in s 3 of the Bill of Rights (s 92G HRA). Further, the same would apply to appeals to this Court under s 124 of the HRA, contrary both to the rules and to the interpretation of that section to date. In her submission, that highlights why Joseph Williams J’s decision is wrong.
Mr Howard’s submissions
[88] In Ms Joychild’s submission, the words “giving notice of appeal” in s 123(4) of the HRA, on their plain meaning, mean giving notice to all those with a clear interest in the appeal. The service requirements thus derive from statute and there is no recourse to the High Court Rules at all. Joseph Williams J was thus correct to so hold. Ms Joychild submits that the construction of the HRA applied by Joseph Williams J is in line with Mucelli v Government of Albania and that we should follow that case which held (by majority) that, since the period for giving notice of an appeal was provided for by statute, the Court had no jurisdiction to invoke the civil procedure rules.
[89] Furthermore, in Ms Joychild’s submission, Joseph Williams J’s decision follows a line of High Court authority holding that time cannot be extended where time is set by statute. Decisions on this point commence with Inglis (which dealt with s 63(3) of the Human Rights Commission Act 1977 which is in identical terms to s 123(4) of the HRA). Inglis was adopted in Ta’ase v Victoria University of Wellington[37] and Cullen v Police.[38] See also Stoves v Commissioner of Police,[39] and CPAG (Child Poverty Action Group) v Attorney-General.[40]
[37] Ta’ase v Victoria University of Wellington (1999) 14 PRNZ 406 (HC).
[38] Cullen v Police (1999) 14 PRNZ 315 (HC).
[39] Stoves v Commissioner of Police (2009) 19 PRNZ 334 (HC).
[40]CPAG (Child Poverty Action Group) v Attorney-General HC Wellington CIV 2009-404-273, 3 July 2009.
[90] Ms Joychild points out that the construction adopted in Inglis has also been applied by this Court in Dawson v Chief Executive Officer of the Ministry of Social Development,[41] although she acknowledges there is possibly a qualifier in that decision to the effect that the Court had not been asked to overrule Inglis. Nevertheless the Court applied Inglis.
[41] Dawson v Chief Executive Officer of the Ministry of Social Development [2007] NZCA 94.
[91] In addition, Ms Joychild submits that Inglis was decided correctly and should not be over-ruled. She points out that Parliament has made amendments to the HRA on several occasions since Inglis. On one such occasion the Act was amended to allow an appeal with leave to this Court. The addition of s 124 was done in full knowledge of the Inglis construction of s 63 of the Human Rights Commission Act and yet the s 123 wording was not altered. Again the changes in 2001 to introduce Part 1A of the HRA were the subject of much executive and legislative activity. No amendments to s 123 were made.
[92] Ms Joychild also submits that there are good policy reasons for providing firm time limits on appeals from the Tribunal, where proceedings before the Tribunal are characterised by applications by lay litigants. In her submission, the Tribunal’s more extensive jurisdiction under recent amendments also points towards the need for firm time limits.
[93] Ms Joychild accepts that the Human Rights Commission and Attorney-General can and do intervene in proceedings where human rights matters are in issue. However, they are not parties and she submits that the obligations of service in s 123 of the HRA would not extend to them. Unlike a respondent or the Tribunal, they are not directly or personally affected by the decision at hand. She agrees that it would be unworkable if every intending appellant in any appeal had to consider if this was a matter that the Human Rights Commission or Attorney-General might be interested in. In Ms Joychild’s submission, the potential involvement of the Human Rights Commission and the Attorney-General should not affect the construction of the words “giving notice of appeal” in s 123(4) one way or the other.
[94] Ms Joychild submits further that Joseph Williams J’s interpretation of s 123 will not affect that of s 124. In her submission, there is no policy reason to read s 123 and s 124 of the HRA identically. They concern different courts. One is an appeal as of right, the other by leave and s 124, unlike s 123, allows an extension of time for appealing.
[95] Even if the High Court Rules do govern the procedural aspects of appeals under s 123(4), Ms Joychild submits that the Attorney-General is in breach of them and unable to rely on r 5 (now r 1.5) to amend a breach of the magnitude at issue in this case. The Attorney-General totally failed to file a copy of the Notice of Appeal in the Tribunal offices or serve it on Mr Howard within 30 days. He is thus in breach of r 706 (now r 20.6). None of the three authorities relied upon by the Attorney-General in the consent memorandum support the use of r 5 in the factual circumstances of this case where, in Ms Joychild’s submission, the breach was very serious (and particularly as regards the Tribunal). Nor, in Ms Joychild’s submission, was the slip rule applicable: r 11 (now r 9.9).
My assessment
[96] The difficulties in assessing the relationship between s 123 of the HRA and the High Court Rules and his preferred construction of those provisions were set out by Joseph Williams J as follows:
[44] In the HRA, s 123(4) speaks of the appeal being “made”, but s 92K(2) in the same Act refers to the expiry of the time for “lodging” an appeal. The Rules on the other hand, refer to an appeal being “brought” rather than made. They describe the circumstances in which the Court can extend time for bringing an appeal (r 704(2) and (3)) and the tasks that must be completed in order for the Court to be satisfied that the appeal has indeed been “brought” (r 706(1)). To make matters worse, under s 123(4) an appeal is “made” by “giving notice” of it – but the provision is silent as to the correct recipient of the notice! One can either infer the correct class of recipients by adopting a purposive approach to construction of the relevant provision or look for more express supplementary directions in the Rules. Whichever approach is taken the answer appears to be the same.
[45] The simpler and, in my view preferable approach, is to construe s 123(4) so as to require all those with a clear interest in the appeal to be given notice of it within the 30-day appeal period. That would obviously include the High Court, the Tribunal at first instance and the parties to the dispute. Such an approach would meet the intent of the provision which is self evidently to ensure that those with an interest in the appeal find out about it as soon as possible. It does not really make sense to construe it as if prompt filing in the High Court is all that is required. That would be to diminish the interests of the litigants before the [Tribunal]. They would after all have at least as great a stake as the High Court itself, in knowing of an appeal.
[97] I agree with Joseph Williams J that the obligation to file and serve the notice of appeal arises from statute. While I agree with Ms Gwyn’s submission that the words “give notice” will take their meaning from the particular statutory context, I would have thought that the primary meaning would encompass both the lodging of the appeal and service on the respondent(s) as the person(s) most interested in any appeal. Absent indications to the contrary, it is difficult to read the term “give notice” in s 123(4) as meaning simply “file with the High Court”. If that had been the intention, then the section would in my view have used different terminology, such as the word “lodge” as in s 92K.
[98] As an aside, I consider that there may be good reason for the difference in terminology between s 123 and s 92K of the HRA. It is the lodging of the appeal in the High Court (a public act) which would stop time running for the Minister. If it included both the lodging of the appeal and the service requirements then, if the point about service was taken at a later date, the Minister could arguably retrospectively find him or herself out of time: see the concerns in this case expressed by the Tribunal in its first memorandum, outlined at [34] above.
[99] Where I differ slightly from Joseph Williams J in the interpretation of s 123 is that I consider that, as the legislation is silent on the issue of who to serve, the High Court Rules provide that information (although as Joseph Williams J points out, the result is the same). This means that I agree with Joseph Williams J that the obligation to file and serve within the statutory timeframe derives from the statute but consider that the list of who to serve derives from the High Court Rules. This was effectively the approach taken by Lord Neuberger in Mucelli (with whom Lord Phillips and Lord Carswell agreed).[42] In this case the High Court Rules limit filing and service to the Tribunal, the High Court and “every other person affected by the appeal”. This would obviously include the respondent (but not in my view the Human Rights Commission or the Attorney-General, despite their ability to intervene in any appeal).
[42] At [60].
[100] As the timeframes for filing and service are set out in the HRA, they are mandatory. They cannot be extended by the Courts as there is nothing in the HRA authorising such an extension: see the cases referred to at [89] above, Dawson,[43] State Insurance General Manager v Scott,[44] Soto v Minister of Immigration,[45] Steinborn v Minister of Immigration,[46] Benchmark Building Supplies Ltd v Wright[47] and Mucelli.[48]
[43] At [12].
[44] State Insurance General Manager v Scott [1982] 1 NZLR 717 (CA).
[45] Soto v Minister of Immigration (1986) 2 CRNZ 350 (CA).
[46] Steinborn v Minister of Immigration [2002] 1 NZLR 639 (CA).
[47] Benchmark Building Supplies Ltd v Wright (1998) 12 PRNZ 200 (CA).
[48] At [74].
[101] It is also noteworthy that s 124 allows extensions of time while s 123 does not. A similar situation in the immigration context (ie where some provisions allowed extensions and other did not) was a factor this Court found had “much significance” in supporting its conclusion that there was no power to extend time under the provision at issue: Steinborn. That case also rejected the proposition that “dispatching” a notice within time constituted service within time. See also Soto v Minister of Immigration[49] and Hawkes Bay Hide Processors of Hastings v Commissioner of Inland Revenue.[50] In Hawkes Bay, Richardson J said:[51]
On this analysis it becomes unnecessary to speculate on the particular public policy concerns Parliament may have had in mind in determining whether or not in a particular case to authorise the Commissioner to extend the time limit. It is sufficient that the legislation expressly empowers the Commissioner to extend that time in cases where it regards it as appropriate to do so in the public interest, and by necessary implication denies the Commissioner that power in those cases where it specifies a time limit without more. [Emphasis added]
[49] Soto v Minister of Immigration (1986) 2 CRNZ 350 (CA).
[50]Hawkes Bay Hide Processors of Hastings v Commissioner of Inland Revenue [1990] 3 NZLR 313 (CA) at 332 per Hardie Boys J.
[51] At 320.
[102] In the same case, Cooke P said that there could not be “substantial compliance” with a fixed time limit.[52] Bisson J made a similar point stating:[53]
The difficulty as I see it ... is how a time limit can not be complied with yet be substantially complied with. It is an in or out situation. Either it is complied with or it is not.
[52] At 314.
[53] At 329.
[103] It is also highly significant, as Ms Joychild notes, that s 123 of the HRA was enacted in the form it was in full knowledge of the interpretation of the predecessor provision in Inglis. Further, the HRA was amended to add a further appeal under s 124 of the HRA with an explicit ability to extend time, without amending s 123 of the HRA.
[104] In my view, the nature of the Tribunal and the HRA is neutral in deciding whether the timeframes for filing an appeal are mandatory. The character of the Tribunal can be made to support either position (as indeed the parties have argued in this case). The Tribunal itself seems to take the view that its character supports having fixed time limits: see at [55] above. In this regard, it may also be significant, as Ms Joychild submits, that there was no amendment to s 123 to allow extensions of time when Part 1A of the HRA was added.
[105] Even if I am wrong in my conclusion that s 123 requires both filing with the High Court and service within the statutory timeframe and it is the High Court Rules that govern service, I accept Ms Joychild’s submission that the same result applies. Under r 706 an appeal is not “brought” until filed in the High Court and the Tribunal and served on the respondent(s). There is nothing in the High Court Rules which allows a differentiation between those three requirements. The appeal is not “brought” until all three are satisfied. Further, no extensions of time for appealing are possible under r 704(3), as s 123 limits the time for appealing and there is no provision permitting an extension. For a further discussion on this point see Stoves.[54]
[54] At [33] – [38].
[106] Only one of the three categories of recipients in r 706(1) was provided with the notice of appeal within the statutory timeframe and thus the appeal was not brought in time in terms of the Rules. Thus what the Attorney-General was seeking in this case, was a de facto extension of time for appealing. I do not consider that it could be in the interests of justice effectively to provide such an extension (in the face of opposition from the respondent) where r 704(3) explicitly forbids it. In my view, r 5 can only be used to correct defects in the manner of service where service has effectively occurred within time, except where there are very unusual circumstances such as where any failure was the fault of the respondent as occurred in Steinborn.
[107] I accept Ms Joychild’s submission that the cases in the consent memorandum of 26 June 2008 do not (with the possible exception of Small) support the proposition that r 5 can be used to correct total failure to serve within time.
[108] In Hamlin the proposed appeal had been seen by a senior member of the respondent’s solicitor’s firm within the statutory period and within the limits provided for personal service (up to midnight). Service had, however, been deficient in that the document had been left at the address for service outside the hours of 9 am to 5 pm. I accept Ms Joychild’s submission that the case of Hamlin is not authority for service that is three days late. The Court in Hamlin emphasised that r 4 (at that stage dealing with the filing and serving of appeals to the Privy Council) was directed to timely service. A court must consider how serious any irregularity in service is before deciding if any flexibility is properly allowable under r 5. The Court said:[55]
Time limits for appeal are rightly regarded as important in the administration of justice. In this case the motion on appeal came to the notice of the respondent’s solicitors within the 21 days provided for. The deficiencies as to time and mode of service on that day are irregularities which have not prejudiced the respondent in any way.
[55] At 51.
[109] In Powell the issue was again the manner of service. In that case an unsigned notice of appeal with slightly different wording from the original document filed in court had been faxed to the respondent on the last day for filing the appeal. The Court exercised its discretion to apply r 5 because the notice had been filed properly, a duplicate had been filed at the District Court within time and the appeal had (within time) been adequately drawn to the attention of the respondent. As in Hamlin, the purpose of the service requirements (ie bringing the appeal to the notice of the appropriate parties) had been fulfilled within time.
[110] In the third case relied upon by the Attorney-General, Small, the Notice of Appeal was served on the respondent within time but posted to the Tribunal on the last day instead of being served. The Ministry of Justice applied to regularise the appeal. Mr Small was unrepresented and it does not appear that the Tribunal put any views before the Court. There was thus no contrary legal argument heard. Gendall J said in a minute:
From a technical point of view, therefore the appeal is not deemed to be brought and those [who] might be pedantic may say it is out of time and now a nullity. Nevertheless R5 of the High Court Rules enables this Court to regularise such technical failures so that irregularity, because it is no more than that, is overcome. Mr Small does not take any issue about this which is a very common sense approach. I have no doubt that it is the sort of technical slip that R5 is designed to correct. [Emphasis added]
[111] This case arguably also concerns deficiencies in the manner of service which occurred within time, the notice of appeal being posted to the Tribunal within time (although I note the comment in Steinborn that despatching a notice does not suffice – see above at [101]). It is possible, however, given the comment in italics in the quote above, that Small was treated as a waiver case, although as I note below, Mr Small was not able to waive the requirement to serve the Tribunal within time. In any event, r 5 was not applicable in Small as the service requirement arises from the HRA and not the Rules. The same may have been the case in Powell.
[112] Before I leave this topic, there is an issue as to the status of appeals that have not been properly “made” in terms of s 123 of the HRA or, if the High Court Rules apply, “brought” in terms of r 706. In Benchmark Building Supplies this Court put forward the preliminary view that the failure to effect timely service of a purported appeal meant that the appeal would be a nullity. It said:[56]
... we would incline to the view of the High Court that proceedings which appear to be duly issued but fail to comply with a statutory requirement can be treated as a nullity when the procedural irregularity is incapable of correction as was the case here. However, that issue does not require determination in this case.
[56] At 203.
[113] A more definitive statement on this topic was made by this Court in Morris v Templeton. In that case, an order had been made in the District Court for relief from liability under s 73 of the Trustee Act. An appeal to the High Court failed and the High Court then refused an application for leave to appeal to this Court. An application for special leave to appeal to this Court was made on the basis that the District Court had lacked jurisdiction to grant relief. Leave was granted and the appeal allowed. It was held that, as the District Court has no jurisdiction to grant relief under s 73 of the Trustee Act, the original decision was a nullity. It was said that it could not be too late to raise a point of this kind.[57] (I note, however, that the appellants in that case were within time for applying for special leave.) The Court also said that s 3 of the Inferior Courts Procedure Act 1909 did not apply (because there could never have been jurisdiction for the order made by the District Court).
Must the Tribunal be served with interlocutory applications?
Attorney-General’s submissions
[142] Ms Gwyn submits that Joseph Williams J erred in finding that the Tribunal was a party to the appeal and therefore must also agree to waive compliance with the service requirement (third ground of appeal). In her submission the finding that the Tribunal has party status, including the requirement to serve on it copies of all interlocutory applications, has implications beyond this appeal.
Discussion
[143] On the issue of the Tribunal’s involvement, the Judge said:
[31] Even if I am wrong in that, [as to the lack of waiver by Mr Howard], it seems to me that the failure to secure the additional consent of the [Tribunal] must be fatal to a waiver argument. Ordinarily of course Tribunals take no active role in argument on the merits of appeals from their decisions. The views of the Tribunal will normally be irrelevant unless the appeal raises an issue of actual bias or one likely to affect the way the Tribunal carries out its task in the future. This appeal does not raise issues in those categories. But it does raise an issue in relation to an obligation owed by the appellant directly to the [Tribunal]. That is the obligation to give the [Tribunal] notice of any appeal under s 123(4) HRA. It seems to me that there are sound reasons why the [Tribunal] should have been served with the application and its consent or waiver sought in respect of any departure from the procedure set out in s 123(4). The timing of notice to the [Tribunal] will affect its ability to plan for an appropriate level of participation in the appeal or to prepare arguments for the High Court as to what that level of participation should be. This is supported by the structure of the Rules themselves. Rule 717 (now r 20.17) entitles the [Tribunal] to be represented and heard on all matters in an appeal unless the Court directs otherwise. The [Tribunal] is therefore a party to any appeal in terms of r 3 and is entitled to be served with any application under r 243 (now r 7.22).
[32] In the absence of any contrary direction from this Court, the consent of the [Tribunal] was required to support any waiver of the relevant time limit by consent. In this case, there was no order limiting the role of the [Tribunal] and the default position ought to have applied. This was after all a matter involving a direct obligation owed to the [Tribunal].
[144] I doubt that the Judge was saying that the Tribunal is a full party to any appeal, other than in the very narrow sense that it has a right to be heard under the High Court Rules (to the extent it is appropriate for it to participate). The Judge after all noted that the Tribunal, except in limited circumstances, will ordinarily take no active role in appeals.
[145] I accept, however, the point made by counsel for the Tribunal in his memoranda, that it will sometimes be appropriate for the Tribunal to assist the Court, as it did here, by drawing attention to authorities that may have been missed (particularly in cases involving lay litigants). It may also have a wider perspective than the particular case at issue which it may be appropriate to place before the appellate court. This is likely to occur more often with matters of procedure.
[146] If the Tribunal has a right to be heard under the High Court Rules and it might be appropriate for it to assist the Court, it follows that it should be served with all papers relating to the appeal (including any interlocutory applications) unless it has indicated that it intends to abide the decision of the Court. Rule 717 after all gave it a right to be heard “on all matters arising in the appeal”. [Emphasis added]. Service of all papers relating to an appeal would enable the Tribunal to assess (as Joseph Williams J noted) whether it would be appropriate for it to place any material before the Court.
[147] Joseph Williams J apparently considered that the orders regularising the appeal could have been made with the consent of the Tribunal. I accept, as does William Young P,[75] that whether or not this is so may be of general practical significance but it does not arise here as there was no such consent. I am inclined to the view, however, that the Tribunal could not have consented. If the High Court had no ability to extend time to appeal (as we have held), then it is difficult to see how the Tribunal (as an inferior judicial body) would have been able to do so. In addition, while having a right to be heard, the Tribunal is a judicial body and not a party. It is not appropriate for such a body to take an active role in the appeal by consenting to the regularisation of any irregularities in the filing and service of that appeal.
Can consent orders of Associate Judges be set aside by the High Court?
The Attorney-General’s submissions
[75] At [181] below.
[148] In Ms Gwyn’s submission, Mr Howard’s failure to use the proper procedure to challenge the orders made by consent, similarly carries a real prospect of success. She points out that this Court has consistently held that challenges to decisions of Associate Judges can proceed only by way of the process set out in s 26P of the Judicature Act.
[149] Ms Gwyn notes that, under s 26P(1), there is power for the High Court to review orders of Associate Judges only when they are made in Chambers. Where they are made in “Court”, the correction process is appeal to this Court under s 26P(2). Under s 26I(1)(e) of the Judicature Act orders made by consent are deemed to be within the Associate Judge’s Court jurisdiction as opposed to his or her Chambers jurisdiction.
Discussion
[150] It is true that the procedures for challenging the judgment of an Associate Judge (appeal or review as the case may be) must be adhered to strictly and cannot be overridden by the High Court, whether purporting to act under inherent jurisdiction or otherwise.
[151] Having said this, all judgments of an Associate Judge, just like that of any other High Court judge, may be subject to recall in limited circumstances. A summary of the situation in which a judgment may be recalled if not already perfected is contained in the judgment of Wild CJ in Horowhenua County v Nash (No 2):[76]
[F]irst, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; second, where counsel have failed to direct the Court’s attention to a legislative provision or authoritive decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.
[76] Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.
Should the consent orders have been set aside?
[152] While Ms Gwyn accepts that Associate Judges, like High Court judges, and in certain limited circumstances, recall their judgments, she submits that Mr Howard’s application of 16 February 2009 (see at [45] above) was not couched as a recall application and in any event there were no grounds for recall. I do not agree.
[153] In this case, the Associate Judge’s attention was not drawn in the consent memorandum of 26 June 2008 to authorities (and in particular Inglis and the subsequent cases applying Inglis) that were relevant to the decision he had to make. Even if the Attorney-General considered Inglis distinguishable (or wrong), it should still have drawn the case (and the subsequent authorities) to the attention of the Associate Judge so that the Judge had the opportunity to consider if that were indeed the case. Inglis was obviously relevant as it dealt with the predecessor to s 123 of the HRA which is in similar terms to s 123.
[154] In addition, there is little doubt that the Associate Judge would not have made the orders had he been aware that Mr Hesketh had indicated opposition to the application to regularise the appeal in his email of 26 June 2008: see at [24] above. This is despite Mr Hesketh not being able to be contacted and not appearing at the Court on 1 July 2008, given the possible confusion over dates: see at [27] above.
[155] Further, there was a failure of natural justice in that the Tribunal had not been heard. The failure to give the Tribunal the opportunity to be heard matters in this case because the Tribunal had material it wished to place before the Court: summarised at [31] ‑ [34] and [37] ‑ [39] above. The decision of the Associate Judge was made in the absence of this material.
[156] For all of the above reasons, this was a classic case for the exercise of the recall jurisdiction. Recall applications should normally be dealt with by the Judge who made the decision but there will be cases where such applications have to be dealt with by another Judge (eg in the case of unavailability through retirement). In this case, if the matter had been dealt with together with the substantive appeal as the Attorney-General wanted (see at [41] above), then the Associate Judge would not have had jurisdiction. Further, this was not a case where another Judge might be at a disadvantage because of not being privy to the thought processes of the Associate Judge or to oral argument. The Associate Judge clearly made the orders only on the basis of the consent memorandum.
Should leave to appeal be granted?
[157] In this case, none of the grounds of appeal have merit or, if there is possible merit, the points would not be determinative and rest in any event too much on the particular factual matrix. In addition, the substantive appeal is largely moot. This means that it would be futile to grant leave to appeal. As this is the case, I do not need to decide whether the appeal should be allowed: see [7](c) above.
Result
[158] The Court is unanimous that leave to appeal is required and that the application for leave to appeal should be declined.
[159] This means that the appeal (CA252/2009), purportedly filed as of right under s 66 of the Judicature Act, is dismissed for want of jurisdiction.
[160] Costs for a standard appeal on a Band A basis plus usual disbursements are awarded to the respondent.
[161] In our capacity as High Court Judges, we decline the Attorney-General’s application for leave to appeal to this Court against Joseph Williams J’s judgment. This disposes of the Attorney-General’s applications to the High Court referred to at [50].
[162] Costs on the leave application are awarded to the respondent in accordance with the High Court Rules on a 2B basis.
[163] Obviously the costs orders we have made do not allow the respondent to claim two sets of costs for the same step taken. If there is any issue about allocation of steps between the appeal and the application for leave to appeal, it can be referred to the Registrar of the High Court.
[164] A copy of this judgment is to be sent to the Registrar of the High Court and his attention drawn to [161] and [163] of this judgment.
WILLIAM YOUNG P
[165] As Glazebrook J notes, there are three issues in the case:
(a) Is leave required to bring the appeal?
(b) If so, should leave be granted?
(c) If leave is required and granted, should the appeal be allowed?
[166] On the first issue, I agree with her conclusion and reasoning.[77]
[77] See above at [64] – [76].
[167] On the second issue, I agree with her that leave should not be granted, a conclusion which obviates the need to address the third issue. My reasons for this conclusion are in some, but not all, respects identical to those advanced by Glazebrook J.
[168] I agree with Glazebrook J’s conclusion that what constitutes “giving notice of appeal” for the purposes 123 of the HRA is to be determined by reference to the requirements of r 706(1) of the High Court Rules, effectively as if they were directly incorporated in the section.[78] I also agree that where, as here, those requirements have not been met, there is no jurisdiction under r 5 to extend the time for doing so.[79] On this aspect of the case, I agree with her reasons.[80]
[78] See above at [97].
[79] See above at [106] – [107].
[80] Outlined above at [96] – [111].
[169] I further agree with the approach of Glazebrook J as to:
(a)Joseph Williams J having jurisdiction to set aside the orders of the Associate Judge along with the reasons she gives for this conclusion.[81]
(b)Waiver as set out in [119] and the limited effect of Siola’a v Wellington District Court (as explained in [128]);
(c)The difficulties of applying absolute ideas of nullity in the context of legal proceedings (as explained at [112] ‑ [115]);
(d)The necessity to serve the Tribunal with the application to extend time (see [143] ‑ [146]).
[81] See above at [150] ‑ [156].
[170] Against that background, I see the key issue which could be argued on appeal, should leave be granted, is whether Joseph Williams J was right to set-aside the orders. If not, then the High Court should have heard the appeal. But if the orders were rightly set-aside, then the argument for the view that Mr Howard has consented to the appeal or waived the time point largely (although I accept not entirely) falls away. And in a situation where the High Court is on notice that service on the Tribunal was not effected in a timely way, and where it cannot be said that the Tribunal has relevantly consented or has alternatively waived the jurisdiction issue, it is difficult to see how the High Court could, conscientiously, have gone on the hear the appeal.
[171] That an order ought not to have been made will normally provide a very good justification for setting it aside. But it does not follow that such an order must inevitably be set-aside. For instance, it may be that the parties have so relied on the apparent validity of the order that it would be unjust to set it aside. Likewise, it may be that the conduct of a party to litigation may preclude that party being permitted to advance or rely on a particular argument. An example of this is provided by Commonwealth of Australia v Verwayen,[82] where the Commonwealth of Australia was held by its conduct of the litigation to have precluded itself (by either waiver or estoppel) from relying on certain defences which would otherwise have been available. One of these defences was absence of duty of care, a point to which I will revert shortly.
[82]Commonwealth of Australia v Verwayen (1990) 170 CLR 395 (HCA).
[172] In this context, is absence of jurisdiction a completely trumping consideration? If it is, any order made without jurisdiction must be set-aside and a court must entertain every challenge to jurisdiction no matter how late or how the parties to the litigation have behaved.
[173] In this case, we have addressed the interrelationship between s 123 and rr 5 and 706 first. This means that the absence of jurisdiction has been determined, ahead of the question whether the Court should enter into the jurisdiction issue. Further, and I think very importantly, the process associated with the making of the orders was so unsatisfactory that the orders in question were an obvious candidate for recall. In this context, I am reluctant to be categorical as to the necessity to set-aside orders for which there was no jurisdiction.
[174] Let us assume a fact pattern which is a little different from that presented to us. Say:
(a)The issue whether the Court could extend time issue had been fully argued before the Associate Judge who, after hearing everyone including the Tribunal, concluded in a reasoned judgment that there was jurisdiction to extend time and granted an extension accordingly;
(b)No application was made to review that judgment within the time provided for by the High Court Rules;
(c)The parties had prepared for the hearing (and in doing so had incurred very substantial costs); and
(d)On the day before the hearing of the appeal, Mr Howard challenged the extension of time and the jurisdiction of the High Court to hear the appeal.
[175] If jurisdiction is always a trumping consideration (so that any order made without jurisdiction must necessarily be set aside), the Judge presumably would not be able to dismiss this challenge unless satisfied that the decision of the Associate Judge was right. In my view, however, it would be open in that situation for the Judge simply to refuse to engage with the jurisdictional challenge; this on the basis that the issue had already been argued and decided and that an extension of time to apply for review would be inappropriate given the resources which had subsequently been expended on the case. A Judge who took this approach would thus not start by deciding whether there was jurisdiction to extend time (as we have). Instead, the Judge would simply leave standing the decision that there was jurisdiction.
[176] In the present case, instead of starting with the jurisdiction issue, we could have addressed first the question whether the order should be set-aside and we could have done so on the basis that until that order was set-aside, it resolved the jurisdiction issue in favour of the Attorney-General. And if we had been satisfied that the process surrounding the obtaining of the order had been appropriate, I think it would have been open to us to conclude that Mr Howard ought not to be permitted to challenge the order. In this way, we could decide the case without having to address independently the jurisdiction issue.
[177] I also think that it is at least arguable that even where there is no court order, a party to litigation might be precluded from arguing a jurisdiction point. In Verwayen, as I have noted, one of the defences which the Commonwealth was held not to be able to run was absence of duty of care. There is a sense in which this was a jurisdictional issue. The courts exist to determine real legal controversies and not hypothetical questions (such as what would be an appropriate level of damages if there had been a duty of care in circumstances where no such duty was owed). This rather suggests to me that, even in the absence of a court order which establishes jurisdiction, a party may sometimes be precluded by his or her conduct from raising a jurisdiction argument.
[178] For those reasons, I am inclined to think that in the High Court there was a discretion to be exercised, namely whether to set-aside the Associate Judge’s orders. I also consider that the post-order conduct of the parties might be material to whether that discretion should have been exercised. That said, however, I am of the view that leave should be declined. This is because:
(a)The proposed appeal has at best limited merits;
(b)The primary issues involve an extremely odd factual situation which is unlikely to be repeated;
(c)To the extent that there are issues of public and general importance involved in the proposed appeal, they are of peripheral significance to the resolution of the appeal; and
(d)The appeal is moot.
I will comment briefly on each of these points.
[179] It is clear that the “consent” orders ought not to have been made. The application did not address the jurisdiction problems, Mr Howard was self-represented when he signed the consent memorandum, consent had been withdrawn before the orders were made and the Tribunal was not given the opportunity to be heard. I accept that arguably the subsequent actions on the part of Mr Hesketh waived late service or in any event precluded a setting-aside, at Mr Howard’s instance, of the consent order. But such an argument cannot be advanced in relation to the Tribunal. In the context of the appalling procedural muddle which developed, I am strongly of the view that the most sensible course of action was to recall and set-aside the consent order. With the orders set aside, the High Court on notice that the appeal was filed late, and nothing in the nature of a consent or waiver from the Tribunal, I struggle to see a legitimate basis upon which the Court could have proceeded to hear the appeal. It is for these reasons that I think the appeal has at best very limited prospects of success.
[180] The procedural muddle just referred to is, I hope, unlikely to be repeated and the resolution of the case is thus unlikely to be of appreciable precedential value.
[181] I accept that the issue whether the Tribunal could consent to late service raises an interesting legal issue of practical significance. But this is of limited moment in the present context given that it did not do so. More significant from my point of view is that it was entitled to be heard on the application for an extension and was not heard. Had it been heard, it is most unlikely that the orders would have been made. This is why I see a good deal of merit in setting aside the orders, and in this way, winding back the clock to an appropriate time in the process.
[182] As Glazebrook J has noted, the underlying issue is moot as it has been addressed by legislation.
ROBERTSON J
[183] I agree with William Young P and Glazebrook J that leave to appeal is required in the circumstances of this case and that it should not be granted. I specifically concur in the aspects of the lead judgment as identified by the President in [166], [168] and [169].
[184] There was an understandable, but significant, oversight about service at an early stage of the case. The endeavours to remedy the situation were not comprehensively engaged with on a variety of fronts.
[185] Although it is now clear that the initial consent orders should not have been made, it is not hard to see why the Associate Judge made the orders on the material placed before him. When it became apparent that there had been significant lapses, the appropriate course would have been to apply to recall the Associate Judge’s orders. The requirements for service in a timely manner could then have been addressed and resolved at that stage and avoided the interminable saga thereafter.
[186] When the case came before Joseph Williams J, I agree that he had jurisdiction to set aside the orders. I cannot see what other course could have been adopted on the factual situation which by then had emerged.
[187] Like the President, I accept that there is not only one route which must be followed in cutting through a procedural imbroglio like the one which developed in this case.
[188] Whether the initial inquiry is the absence of substantial merits, or a jurisdictional assessment is immaterial. When the matter came before Joseph Williams J, the vital matter was how to return the parties to the position they were in prior to the making of the consent orders as it was clear at that stage that they had been made mistakenly.
[189] There is no realistic way in which it could seriously be said that the exercise undertaken by the High Court Judge is challengeable. There is accordingly no basis upon which the case could sensibly be advanced for further consideration in this Court.
[190] There has been an intervening statutory amendment which means that the crux issue between the parties is without ongoing consequence. There are no countervailing reasons for this litigation to be maintained. The procedural inadequacies which persisted over a period of time were an unfortunate aberration which hopefully will not arise again.
[191] Leave should accordingly be declined.
Solicitors:
Crown Law Office, Wellington for Appellant
Russell McVeagh, Wellington for Human Rights Review Tribunal
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