Bhana v Chief Executive of the Ministry of Business, Innovation and Employment
[2024] NZHC 1534
•12 June 2024
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CIV-2023-463-29
[2024] NZHC 1534
IN THE MATTER of an interlocutory application for review of Registrar’s decision declining to accept an appeal for filing BETWEEN
JASU MATI BHANA and STEPHEN
CHIMAN BHANA as trustees of the RANOLF TRUST
Appellants
AND
THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT
Respondent
Hearing: On the papers Counsel:
Appellants in person
M Brown for Respondent
Judgment:
12 June 2024
JUDGMENT OF LANG J
[on application for review of Registrar’s decision declining to accept a document for filing]
This judgment was delivered by Justice Lang On 12 June 2024 at 3.30 pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar
Date:…………………………
Solicitors/counsel:
Legal Services, Ministry of Business, Innovation and Employment
Copy to: Appellants
BHANA v THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2024] NZHC 1534 [12 June 2024]
[1] This is an application for review of a Registrar’s decision not to accept a notice of appeal for filing.
Background
[2] The application flows from a series of decisions made by the Tenancy Tribunal and the District Court. The first in time was a decision issued by the Tenancy Tribunal on 21 September 2021. On 5 September 2022, the District Court declined an application by the appellants for review of a Registrar’s decision declining to accept a notice of appeal against the Tenancy Tribunal’s decision on the basis that it was well out of time.
[3] The appellants had earlier filed an application for a stay of execution of the Tenancy Tribunal’s decision pending determination of their appeal against that decision. On 23 February 2023, Judge G C Hollister-Jones issued a decision dismissing the application for stay of execution on the basis that there was no live appeal before the District Court.1
[4] The applicants, who have represented themselves throughout, filed a notice of appeal against Judge Hollister-Jones’ decision in this Court on 19 April 2023. Unfortunately, however, the intituling to the notice of appeal did not contain the word “Rohe” in the te reo heading. This meant it did not comply with r 5.11(1)(b) of the High Court Rules 2016. Rule 5.11(1)(b) requires documents filed in the High Court to name the registry of the Court in which the document is to be filed in both English and te reo Māori.
[5] The notice of appeal was originally accepted for filing over the counter. Nine days later, on 28 April 2023, a Deputy Registrar returned the notice of appeal to the applicants together with advice that they needed to provide a full te reo heading on cover pages filed in the High Court. The applicants returned to the Registry later the same day and filed a further notice of appeal in correct form. The case officer dealing with the file subsequently advised the appellants that he was accepting this document
1 Bhana v Chief Executive of the Ministry of Business, Innovation and Employment [2023] NZDC 3690.
for filing but that it would be recorded as having been received on 28 April 2023. This meant the applicants were out of time to appeal against the Judge’s decision. The applicants filed the present application for review of the Registrar’s decision on 5 May 2023.
Procedural issues
[6] In a Minute issued on 3 August 2023, Associate Judge Taylor noted that the parties anticipated that the application for review would be dealt with on the papers. This was to be subject to any direction given by the Judge allocated to hear it.
[7] There was then a significant delay before the applicants filed and served their submissions in support of the application. They eventually filed these on 15 November 2023. In a Minute issued on 4 December 2023, I directed that submissions for the respondent were to be filed and served no later than 20 December 2023. I also directed the Registrar to allocate the application a fixture. The respondent subsequently filed its submissions as directed and I was allocated to hear the application on 11 June 2024.
[8] Having read the submissions of both parties, I did not see the need for an oral hearing. By minute issued on 5 June 2024 I vacated the fixture on 11 June 2024 and advised the parties that I would determine the application on the basis of the submissions they had filed.
Jurisdiction
[9] Rule 2.11(1)(b) of the High Court Rules provides that an affected party may apply to a Judge by interlocutory application for review of a Registrar’s refusal to accept a document tendered for filing. On review, a Judge may make any orders he or she thinks just.2
[10] An application for review of a Registrar’s decision must be filed within five working days of the date of the decision.3 The applicants complied with this
2 High Court Rules 2016, r 2.11(2).
3 Rule 2.11(4)(a).
requirement by filing the present application on 5 May 2023. Jurisdiction therefore exists to review the Registrar’s decision to refuse the Notice of Appeal for filing when it was first tendered on 19 April 2023.
Decision
[11] In failing to include the word “Rohe” in the intituling of the Notice of Appeal the applicants obviously failed to comply with the requirements of r 5.11(1)(b) of the High Court Rules. This requires the heading of any document filed in Court to state the Registry of the Court in which it is filed in both English and te reo Māori. However, the Registry ought to have picked the error up when the applicants initially filed the Notice of Appeal on 19 April 2023. Once the documents had been accepted for filing on that date, they became subject to the High Court Rules, the objective of which is to secure “the just, speedy, and inexpensive determination of any proceeding”.4
[12] Notably, r 1.5(1) provides that a failure to comply with the requirements of the rules must be treated as an irregularity and does not nullify the proceeding. Rule 1.5(2) goes on to provide:
(2) Subject to subclauses (3) and (4), the court may, on the ground that there has been a failure to which subclause (1) applies, and on any terms as to costs or otherwise that 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 any amendments to be made and to make any order dealing with the proceeding generally as it thinks just.
4 Rule 1.2.
[13] I am satisfied that the Registrar erred in rejecting the Notice of Appeal. Once it was initially accepted for filing on 19 April 2023 the proceeding ought to have been case managed in the usual way. This process may (or may not) have identified the error that occurred. The error was not material and did not prejudice the respondent in any way. The respondent accepts that this is so. It is therefore virtually inevitable that the Court would have exercised its powers under r 1.5(2)(b) to allow the applicants to amend the cover sheet of the Notice of Appeal by adding the word “Rohe”.
[14] As matters transpired, the decision to reject the Notice of Appeal nine days after it was first filed had significant consequences for the applicants. Although they responded immediately, the delay meant they were unable to lodge an appeal against the Judge’s decision within the prescribed period.
[15] Ordinarily, this series of events would result in the Court granting the application and directing that the Notice of Appeal was to be treated as having been filed on 19 April 2023. However, that would be a futile exercise in the present case because the proposed appeal has no prospect of success.
[16] The appellants filed their application for stay of execution of the Tenancy Tribunal’s decision to protect their position pending determination of their appeal to the District Court against the Tenancy Tribunal’s decision. However, their appeal of the Tenancy Tribunal’s decision was never accepted for filing in the District Court because it was out of time. It is therefore no longer possible for the appellants to challenge the Tenancy Tribunal’s decision by way of appeal. It follows that they had no basis on which they could obtain a stay of execution of that decision.
[17] The resources of this Court should not be expended on litigation that has no chance of success.
Result
[18]The application for review of the Registrar’s decision is dismissed.
Costs
[19] The respondent is entitled to costs on a category 2B basis together with disbursements as fixed by the Registrar.
Lang J
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