Beattie v Official Assignee

[2021] NZHC 1607

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2021-488-57

[2021] NZHC 1607

IN THE MATTER

of a claim under the Privacy Act 1993

BETWEEN

IAN BEATTIE

Appellant

AND

THE OFFICIAL ASSIGNEE

Respondent

Hearing:	1 July 2021 (via AVL)
Appearances:	No appearance by or on behalf of Appellant F J Gollogly for Respondent
Judgment:	1 July 2021

JUDGMENT OF BREWER J

Solicitors:

Meredith Connell (Auckland) for Respondent

(Copy to Appellant in person)

BEATTIE v THE OFFICIAL ASSIGNEE [2021] NZHC 1607 [1 July 2021]

[1]    On 25 May 2021, Mr Beattie filed a notice of appeal of a decision issued by the Human Rights Review Tribunal. The decision of the Human Rights Review Tribunal was delivered on 21 April 2021.1 Mr Beattie, who represents himself, also filed an affidavit in support. However, Mr Beattie did not at the same time serve the respondent, nor the Human Rights Review Tribunal. Indeed, the lawyers for the Official Assignee were not served with the appeal documents until 10 June 2021.

[2]    The problem for Mr Beattie (who did not appear today) is that the appeal provision in s 123 of the Human Rights Act 1993 stipulates that every appeal must be made by giving notice of appeal within 22 working days after the date of the delivery of the Tribunal’s decision. The section goes on to say that:

(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.

[3]    The relevant rule is r 20.4. This requires an appeal to be brought within the specified period set out in the enactment that confers the right of appeal. The Court, and this is trite, may only extend the time prescribed in the statute if the statute permits an extension of the time prescribed. The Human Rights Act 1993 does not contain any provision permitting the extension of the 22 working days provision.

[4]    Finally, r 20.6 of the High Court Rules makes it clear that an appeal is brought when the appellant serially files a notice of appeal, files a copy of the notice of appeal in the administrative office, and serves a copy of the notice of appeal on every other party directly affected by the appeal.

[5]    Therefore, Mr Beattie is out of time. The service of the notice on the Official Assignee’s lawyers on 10 June 2021 was well outside the 22 working days period.

[6]    Mr Gollogly, for the Official Assignee, has referred me to the Court of Appeal decision in The Attorney-General v Howard.2 A virtually identical situation arises in that case. The Court of Appeal said:

1      Beattie v Official Assignee [2021] NZHRRT 21.

2      The Attorney-General v Howard [2010] NZCA 58, [2011] 1 NZLR 58.

[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 …

[7]Later, the Court of Appeal said:

[105] … 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.

[8]I am bound by that decision.

[9]Mr Beattie’s appeal must be struck out, and I do so accordingly.

[10]   If costs are to be sought, the Official Assignee must file its memorandum within 10 working days.

Brewer J