Legal Research
Cases
Attorney-General v Howard

Attorney-General v Howard

Case [2010] NZCA 58 11 March 2010

Jurisdiction

Statutory Interpretation

Legitimate Expectation

Natural Justice & Procedural Fairness

Public Interest

Administrative Law

Human Rights Law

No judgment structure available for this case.

Type to search within this case.

For a Court ready (fee required) version please follow this link

IN THE COURT OF APPEAL OF NEW ZEALAND
CA252/2009
[2010] NZCA 58
BETWEENTHE 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attorney-General v Howard

Details

AGLC: Attorney-General v Howard [2010] NZCA 58
Case: [2010] NZCA 58
Decision Date: 11 March 2010

CaseChat Overview and Summary

This appeal concerns the validity of an appeal against a decision of the Human Rights Review Tribunal. The appeal was filed outside the statutory timeframe and was not served on the respondent or the Tribunal within the timeframe. The Attorney-General sought to regularise the appeal by filing an interlocutory application in the High Court. The application was made by consent and the Associate Judge granted the application and made an order regularising the appeal. The respondent later sought to set aside the Associate Judge's order and, in doing so, succeeded. The Attorney-General now appeals against that decision. The appeal raises two issues: (1) whether leave is required to bring the appeal and, if so, should leave be granted; and (2) if leave is required and granted, should the appeal be allowed. The Court unanimously held that leave was required and that the application for leave to appeal should be declined. The Court found that the appeal had at best limited merit and that the appeal was moot. The Court further held that the appeal was an obvious candidate for recall.

Orders