Brown v New Zealand Post Limited

[2018] NZHC 2994

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2017-485-517

[2018] NZHC 2994

UNDER

the Human Rights Act 1993, the

New Zealand Bill of Rights Act 1990, the Evidence Act 2006 and Prosecution Guidelines 2013

IN THE MATTER

of the decision of the Human Rights Review Tribunal given in the Minutes of QC Haines

BETWEEN

MATTHEW RICHARD BROWN

Appellant

AND

NEW ZEALAND POST LIMITED

Respondent

Hearing:

14 November 2018

Counsel:

Appellant in Person

O E Jaques for the Respondent

Judgment:

19 November 2018

JUDGMENT OF CHURCHMAN J

Introduction

[1]    By notice dated 5 February 2018, Mr Brown, who is self-represented, has applied for leave to appeal Cull J’s judgment of 31 October 2017 in which she dismissed his appeals against two interlocutory decisions of the Human Rights Review Tribunal (the Tribunal).1 Cull J found that they could not succeed as the decisions in question were not final determinations of the Tribunal, so were not subject to appeal to the High Court under s 123(2) of the Human Rights Act 1993 (the Act).2

1      Brown v New Zealand Post Ltd [2017] NZHC 2670.

2 At [46].

BROWN v NEW ZEALAND POST LIMITED [2018] NZHC 2994 [19 November 2018]

[2]    Mr Brown applies for leave to appeal to the Court of Appeal on the ground that Cull J failed to acknowledge evidence demonstrating that the chairperson of the Tribunal should have been disqualified from presiding over his case before the Tribunal.

[3]New Zealand Post Limited (NZ Post) opposes his appeal on the grounds that:

(a)Mr Brown has identified no question of law;

(b)the appeal is redundant; and

(c)the appeal is out of time.

Leave to appeal

[4]    Further appeals to the Court of Appeal are addressed in s 124 of the Act, which relevantly 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.

…

[5]    Appeals under s 124 of the Act require that the applicant raise a question of law capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the costs and delay of a further appeal.3

Mr Brown’s submissions

[6]    In his submissions dated 23 October 2018, Mr Brown raises a number of concerns he has regarding various members of the New Zealand judicial system, including court registrars and presiding judges, who he claims have failed to uphold his civil rights and the rule of law. In particular, he challenges Thomas J’s refusal to recuse herself from presiding over a telephone conference on 8 October 2018 dealing with directional matters.

[7]    Mr Brown continued in a similar manner with his oral submissions made to the Court. None of the matters covered in either his written or oral submissions were relevant to the issues that the Court is required to consider in relation to the application for leave to appeal. When invited to focus on the issue of why leave should be granted, Mr Brown was unwilling or unable to do so.

NZ Post’s submissions

[8]    Counsel for NZ Post, Mr Jaques, submitted in his written submissions that  Mr Brown’s application for leave to appeal fails to identify either a relevant determination of the High Court or a relevant question of law, but rather refers primarily to factual material that Mr Brown says ought to have been taken into account. Mr Jaques submits that an appeal based solely on an asserted factual error simply cannot meet the jurisdictional requirements of s 124, citing the Court of Appeal in Ministry of Health v Atkinson in which it was held, regarding factual matters that:4

[P]rovided the High Court has not overlooked any relevant matter or taken account of an irrelevant matter, “the conclusion is a matter for the fact-finding court, unless it is clearly insupportable”.

3      Child Poverty Action Group Inc v Attorney-General [2012] NZHC 675 at [7], citing the Court of Appeal decisions of Waller v Hider [1998] 1 NZLR 412 and Snee v Snee (1993) 13 PRNZ 609.

4      Ministry of Health v Atkinson [2012] NZCA 184, [2012] 3 NZLR 456 at [146], citing Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [25].

Therefore, he submitted, leave cannot be granted.

[9]    Mr Jaques also submitted that, as the application for leave does not seek to challenge the High Court’s finding that the decisions of the Tribunal were decisions on preliminary matters and not final determinations, and so were not subject to appeal to the High Court pursuant to s 123(2)(e) of the Act, the appeal is redundant as it does not seek and cannot achieve a different result in this proceeding.

[10]   Finally, Mr Jaques submitted that Mr Brown’s notice of application for leave to appeal was not filed until 5 February 2018, over three months after the decision of the High Court was delivered and, as s 124 provides that any such application must be made within 21 days of the determination of the High Court or such further time as the Court may allow, Mr Brown’s appeal is out of time.

Analysis

[11]   It is my view that, as Mr Brown’s application does not appear to raise any question of law that is of relevance to the decision under appeal, let alone one that is sufficient to justify the cost and delay of a second appeal, leave should not be granted. Furthermore, this appeal has been brought out of time and, given that it fails to meet the jurisdictional threshold for leave to appeal to the Court of Appeal, I am not prepared to extend time.

Result

[12]For the reasons given above, leave to appeal is declined.

Churchman J

Solicitors:
Russell McVeagh, Wellington for the Respondent