Bhana v Chief Executive of the Ministry of Business, Innovation and Employment
[2023] NZHC 3466
•1 December 2023
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CIV-2022-463-000101
[2023] NZHC 3466
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
Applicants
AND
THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT
Respondent
Hearing: 27 November 2023 Appearances:
Mr Bhana, Applicant in Person
M L Brown for the Respondent (via VMR)
Judgment:
1 December 2023
JUDGMENT OF HARVEY J
This judgment is delivered by me on 1 December 2023 at 5.30 pm pursuant to r 11.5 of the High Court Rules.
.....................................................
Registrar / Deputy Registrar
Solicitors:
Ministry of Business, Innovation Employment Legal Services, Auckland
And to:
Jasu and Stephen Bhana, Appellants
BHANA v THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2023] NZHC 3466 [1 December 2023]
Introduction
[1] Jasu and Stephen Bhana appeal against the decision of Judge G C Hollister-Jones of the District Court dismissing their application for a review of the Registrar’s decision not to accept for filing a notice of appeal out of time against a Tenancy Tribunal decision.1
[2] The Ministry of Business, Innovation and Employment (MBIE) opposes the appeal on the grounds that the Registrar acted correctly in refusing to accept the original appeal because it was out of time. Consequently, the learned Judge was also correct to dismiss the application to review that decision.
Background
[3] This summary is taken largely from the MBIE chronology. On 21 September 2021, the Tenancy Tribunal issued a decision against the appellants ordering them to pay $16,472.22 to the respondent (the Substantive Tribunal Decision).2 The Tribunal also ordered the appellants to complete work on the subject properties. The appellants had 10 working days to file an appeal in the District Court. A week later, on 28 September 2021, the appellants sought a rehearing in the Tribunal.
[4] Then on 30 September 2021, a stay was granted by the Tribunal pending determination of the application for a rehearing. On 6 October 2021, at 12.08 am, the appellants filed an appeal against the Substantive Tribunal Decision. The Registrar refused to accept it for filing as it was out of time (the Registrar’s Filing Decision). Following that, on 10 November 2021, the Tribunal declined the application for a rehearing and the stay lapsed.
[5] On 24 November 2021, the appellants filed an appeal against the Tribunal’s decision not to grant a rehearing along with an application in the District Court for a stay of enforcement of the Substantive Tribunal Decision.3 The District Court declined the application for a stay on 9 December 2021. Then on 12 January 2022, the
1 Bhana v Ministry of Business, Innovation and Employment [2022] NZDC 17110.
2 Ministry of Business, Innovation and Employment v Bhana [2021] NZTT Rotorua 4273958.
3 This notice of appeal purported to also appeal the Substantive Tribunal Decision by including both “21 September 2021” and “10 November 2021” as the “date of decision appealed”.
appellants filed an appeal in this Court against the District Court’s decision to decline the application for a stay and the Registrar’s Filing Decision.
[6] Following that, on 22 February 2022, this Court allowed the appeal against the decision not to grant the application for stay and remitted that matter back to the District Court for a rehearing. The Court concluded it had no jurisdiction to consider the Registrar’s Filing Decision and struck that aspect of the appeal out.
[7] On 26 July 2022, the appellants filed an interlocutory application in the District Court for review of the Registrar’s Filing Decision. Then on 29 July 2022, the respondent filed a notice of opposition to that application. Following that, at a hearing on 30 August 2022, the appellants abandoned their appeal against the Tribunal’s decision not to grant a rehearing. This was accepted by the Court and recorded in a Minute.4
[8] Then on 5 September 2022, the District Court dismissed the appellants’ application for review of the Registrar’s Filing Decision.5 This is the decision on appeal. Following that, on 28 September 2022, the respondent filed an interlocutory application to dismiss or strike out the appellants’ application for a stay.
[9]The appellants then filed a notice for the present appeal on 3 October 2022.
Procedural history
[10] On 9 November 2023, Woolford J noted that the first call for a case management conference of the appeal was set for 8 November and that when contacted by the registry, Jasu Bhana expressed surprise even though they had been served by email on 21 and 27 October 2022. Mr Bhana’s request for an adjournment to 22 November 2022 was then granted.
[11] At a second conference held on 22 November 2022, Jagose J noted that Mr Bhana was no more prepared than he had been on 8 November, citing instead an
4 Bhana v Ministry of Business, Innovation and Employment DC Rotorua CIV-2021-063-621, 30 August 2022.
5 Bhana v Ministry of Business, Innovation and Employment [2022] NZDC 17110.
application for a stay in the District Court to be heard in February 2023. Jagose J confirmed to Mr Bhana that the stay was immaterial to the present appeal. He directed that Mr Bhana address the respondent’s request for refinement of the appeal and failing that, any such unresolved issues would be heard and determined at the substantive appeal hearing.
[12] In addition, Jagose J recorded that he “directed in terms of paragraphs 1 and 2 of the Ministry’s memorandum”. Paragraph 1 included “In the event this matter proceeds to hearing, the appellants must pay security in the sum of $2,390 not later than 10 working days after the conference.”
[13] Following that, on 28 June 2023, Ms Brown filed a memorandum confirming that attempts to resolve outstanding issues over refinement of the appeal had been unsuccessful. A hearing date for the appeal was sought. On 30 June 2023 Mr Bhana filed a memorandum and repeated his earlier assertion that the appeal could not be heard until the stay application had been determined, even though this had been dealt with by Jagose J in his earlier minute.
[14] A conference was held before me on 1 August 2023. It was evident that, from Mr Bhana’s perspective, the situation had not changed. He referred to his memorandum filed at 5.00 pm on 31 July 2023 where he mentioned illness affecting his ability to properly engage with the process. He made several other submissions including references to the stay, the orders issued by Jagose J, the New Zealand Bill of Rights Act 1990, costs and a request for a further case management conference.
[15] Ms Brown submitted that Jagose J issued an order for payment of security for costs of $2,390. Under r 20.13(4) of the High Court Rules 2016, she contended that security for costs must be paid within 10 working days. Rule 20.15 provides that, except in the case of an appeal under the District Court Act 2016, and where non-compliance with the security order results in a deemed abandonment of the appeal under section 126 of that Act, if the security is not paid within the time specified under subclause (4), the respondent may apply for an order dismissing the appeal.
[16] Mr Bhana made two points in reply. First, that as a lay litigant, he did not understand that security had to be paid within the time required. Second, that he was in a position to pay security for costs. However, he maintained his argument that the stay needed to be dealt with first.
[17] I pointed out in a subsequent minute that there was nothing in Mr Bhana’s submissions that affected Jagose J’s orders issued on 22 November 2022. I then confirmed that, given Mr Bhana’s failure to attempt a refinement of the appeal issues, consistent with the minute of Jagose J, they would be dealt with at the substantive hearing. I then noted that, as to Mr Bhana’s submissions on the disadvantages of being a lay litigant, a review of the file demonstrated that he had clear understanding of the issues. After noting that the appeal was brought under s 124 of the District Courts Act 2016, and citing s 126(3), I extended the order for payment of security for costs by a further 10 working days.6 It was also noted that if payment was not received within that timeframe, then the appeal would be deemed abandoned.
[18] Then on 16 November 2023, the appellants field a memorandum seeking to have the fixture vacated and for the appeal to be dealt with on the papers. Counsel for MBIE opposed that request. In a subsequent minute issued later that day, I confirmed that the appeal would proceed as scheduled on 20 November 2023. For completeness I note that the appellants had been in breach of earlier directions regarding defining the issues on appeal as well as for the filing of documents.
[19] Unfortunately, when the appeal was called, after a short time listening to Mr Bhana and Ms Brown, it was obvious that the appellants had not understood which matter was being heard. Due to confusion on their part, they indicated that they did not realise that the appeal hearing was about the Judge Hollister-Jones decision. This is despite the fact that the notice from the Registrar, along with counsel’s memorandum and minutes from the Court, made it plain as to which appeal was being heard. Even so, it was evident to me—and Ms Brown did not disagree—that the appellants were confused and therefore unprepared for the appeal hearing. The result was that with the agreement of the parties the appeal was adjourned to 27 November 2023.
6 High Court Rules 2016, r 1.19(1).
District Court decision
[20] The Judge recorded the appellants’ view that time did not begin to run on the filing for the notice of appeal until 10 November 2021 when the application for a rehearing was dismissed by the Tenancy Tribunal. The appellants also asserted that they had received conflicting information from the Ministry of Justice helpline regarding the date of filing for any appeal.
[21] He then cited s 117 (6) of the Residential Tenancies Act 1986 which set out the appeal time frame of “10 working days after the date of the decision to which the appeal relates”. The Judge highlighted the last five words of that sentence from s 117(6). He then underscored that the date of the decision was when the Tribunal issued its determination, or 21 September 2021 in this case. This meant that the appeal had to be filed by 5 pm on 5 October 2021.7 It was not, and therefore it was out of time. The Judge concluded that the Registrar acted correctly in refusing to accept the notice of appeal. He then dismissed the application for review of the Registrar’s decision while setting down the application for a stay of the decision for 12 October 2022.
Submissions
Appellants’ submissions
[22] The appellants filed written submissions and related documentation both before and after the hearing. That included medical information, email correspondence, court minutes and decisions. In summary, from the outset the appellants submitted that “due to the misunderstanding’ of the earlier appeal hearing, their submissions may not be complete due to “the short timeframe”. They also pointed out that the respondent’s bundle of documents was “not totally in order’ and that there may be additional and incomplete documents filed. They pointed out that they were lay litigants which they submitted the courts had to take into account. The appellants highlighted that they had paid into Court security for costs.
7 Referring to District Court Rules, r 2.4(1).
[23] In any event, the appellants referred to a number of related proceedings and applications which they saw as relevant to the present appeal. In summary, the salient points were that (a) there was a stay operating over the proceeding which also meant the time for filing an appeal was “stayed”; (b) there was a further notice of appeal filed 24 November 2021 which remained valid and was not addressed by the Judge and (c) the time for filing did not begin to run until after the application for rehearing was resolved on 10 November 2021.
Respondent’s submissions
[24] In summary, Ms Brown argued three principal points. First, the appellants have failed to adequately set out the grounds for their appeal or the relief sought. Secondly, the appellants were out of time to file an appeal against the Tribunal’s decision. Therefore, the District Court Registrar acted correctly and lawfully when refusing to accept the appeal for filing. Thirdly, there is no scope to extend the time for filing the appeal. Accordingly, counsel submitted that the appeal should be dismissed.
Discussion
[25] In the period surrounding the issue of the original decision of the Tenancy Tribunal and given subsequent applications for a stay, for review and for appealing out of time, it is not surprising that there appeared to have been some confusion as to the effect of each application on the Tenancy Tribunal decision and everything that followed from that. This was also evident from the first attempt to hear that appeal, as foreshadowed. The appellants say that they may have been confused and that the Court must take account of the fact that they are lay litigants and that Mr Bhana has been suffering from illness for a lengthy period of time. That too has impacted on the appellants’ ability to properly engage with the appeal, they say. This does highlight the risks of lay advocacy when important procedural and legal issues are involved.
[26] Yet none of that detracts from the principal point which is the failure to file the appeal from the Tenancy Tribunal decision within the relevant timeframe of 10 working days. None of the appellants’ submissions effectively addresses this point. The appellants even refer to the first application to appeal as the “out of time appeal”.
[27] Any appeal had to be filed by 5 pm on 5 October 2021. So even 5.01 pm would be out of time, let alone early the next morning. My conclusion is that the appeal should have been filed by 5 October 2021. It was not and therefore I agree with the Judge that the registrar was correct to reject its filing.
[28] The appellants also argued that the Judge did not refer to their 24 November 2021 appeal “which is also relevant”. I disagree. As is clear from the procedural history, the 24 November 2021 notice of appeal was ultimately abandoned and cannot properly be the subject of this appeal. In any event, it is hard to see why a notice of appeal that is even further out of time would have any bearing on this appeal.
[29] I agree with Ms Brown’s submission that the effect of r 18.4(3) of the District Court Rules 2014 is that there is no discretion to extend the time for filing.
[30] One the issue of a stay, the appellants did not appear to understand that the stay would apply, if granted, to the implementation of the decision. It did not, however, contrary to their belief, mean that the time running for the filing of the appeal was also, in effect “stayed”. That is not what s 117(6) contemplates at all. If the appellants had obtained legal advice then this confusion might not have arisen.
[31] In summary, I accept the submissions of Ms Brown. Accordingly, I detect no error in the approach of the learned Judge to his dismissal of the application to review the Registrar’s decision not to accept for filing the appeal out of time.
[32] One last point. As to any suggestion of a lack of preparedness, the procedural history demonstrates that the appellants were well aware of the relevant issues as early as the first minutes issued by Woolford and Jagose JJ, as those minutes confirm. The respondent had repeatedly sought confirmation from the appellants of the appeal issues but without success and despite directions from the Court that they needed to do so. Failing that, the parties were notified that the appeal issues would be dealt with at the substantive hearing. The short point is that I do not accept the suggestion that somehow the appellants may have been disadvantaged by the “short notice” as they claim between the original appeal hearing and the date it was eventually heard. Given the history to these proceedings, that would be an inexplicable suggestion.
Decision
[33] The appeal against the District Court decision to refuse to allow an appeal out of time is dismissed.
[34] Counsel may file a memorandum as to costs within 10 working days of up to three pages. Mr Bhana will have a further 10 days to file any response. Costs will then be dealt with on the papers.
Harvey J
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