Brown v New Zealand Post Limited
[2017] NZHC 2670
•31 October 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE WHANGANUI-Ā-TARA ROHE
CIV-2017-485-517
CIV-2017-412-007 [2017] NZHC 2670
UNDER The Human Rights Act 1993
The New Zealand Bill of Rights Act 1990
Evidence Act 2006
Prosecution Guidelines 2013IN THE MATTER OF
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: 11 October 2017 Appearances:
M R Brown self-represented the appellant
O E Jaques for the respondentJudgment:
31 October 2017
JUDGMENT OF CULL J
[1] Mr Brown is a self-represented litigant who appeals against two interlocutory decisions of the Human Rights Review Tribunal (the Tribunal). Each appeal has been filed as a separate proceeding, but both appeals are to be heard together, by the Court’s direction.1 The proceedings before the Tribunal concerned alleged breaches under the Human Rights Act 1993 (the Act) by indirect discrimination (s 65) and
victimisation (s 66(1)(a)(i)).
1 Minute of telephone conference, 28 August 2017. The strike-out application had been adjourned by Faire J in a minute, 13 June 2017.
BROWN v NEW ZEALAND POST LIMITED [2017] NZHC 2670 [31 October 2017]
[2] New Zealand Post (NZ Post) opposes both appeals. Following directions from Williams J,2 NZ Post filed an application to strike out both of Mr Brown’s appeals. The strike-out application has not been the subject of a hearing direction, but clearly should be addressed before the hearing of the substantive appeals. In its strike-out application, NZ Post pleads the first appeal is out of time and this Court does not have jurisdiction to hear either appeal, because they do not arise from final
determinations of the Tribunal.
[3] Mr Brown opposes the strike-out application of NZ Post.
Factual background
[4] Mr Brown has filed proceedings in the Tribunal against NZ Post. Previously he has filed proceedings in the Tribunal (to which Mr Brown makes reference in these proceedings) against Otago Polytechnic.
[5] Mr Brown’s claim was filed in the Tribunal on 14 July 2016. The Statement of Claim alleges that NZ Post has breached the Act and unlawfully discriminated against Mr Brown on the basis of his sex and age by:
(a) refusing or failing on demand to provide Mr Brown with goods, facilities or services (s 44(1)(a));
(b)treating Mr Brown less favourably in connection with the provisions of those goods, facilities or services than would otherwise be the case (s 44(1)(b));
(c) indirectly discriminating against Mr Brown (s 65); and
(d)victimising Mr Brown, by treating or threatening to treat him less favourably than other persons on the ground that he has made use of,
or intends to make use of, his rights under the Act.
2 Minute of Williams J, 1 May 2017.
[6] The claim does not identify any of the facts and circumstances Mr Brown relies on in support of the above allegations. However, from NZ Post’s submissions, the documents accompanying the claim and Mr Brown’s oral submission, Mr Brown takes issue with:
(a) the alleged disclosure of Mr Brown’s personal and banking details by a member of NZ Post’s staff to unspecified individuals;
(b) the fact that Mr Brown was trespassed from the Post Shop at 310
Moray Place, Dunedin;
(c) comments allegedly made by NZ Post employees to Mr Brown (including alleged comments to the effect that Mr Brown “deserved to be killed for aiding the Police in a murder investigation”); and
(d) the process followed by NZ Post in addressing Mr Brown’s
complaints.
[7] In response to these allegations of fact, NZ Post’s position is:
(a) no member of its staff has disclosed Mr Brown’s personal or banking
details to third parties;
(b)Mr Brown was trespassed from the Moray Place Post Shop with the Police in attendance because his behaviour gave rise to legitimate concerns by NZ Post for the safety and wellbeing of its staff;
(c) Mr Brown was only trespassed from this specific Post Shop and can
access NZ Post’s services and facilities at other locations in Dunedin;
(d) NZ Post denies its employees made comments of the kind referred to;
and
(e) NZ Post has not treated Mr Brown differently to any other person on the basis of his age, sex or any other prohibited ground of discrimination.
[8] On 18 August 2016, NZ Post filed a statement of reply denying Mr Brown’s
allegations to the Tribunal.
[9] On 26 August 2016, Mr Brown filed an affidavit alleging that the Chairperson of the Tribunal misconducted himself in respect of proceedings brought by Mr Brown in the Tribunal in 2013 against Otago Polytechnic. These are unrelated proceedings to the present, but to which Mr Brown referred in oral submissions.
Human Rights Review Tribunal decisions
[10] The Tribunal has not yet made a final determination in Mr Brown’s proceedings. The subject of these appeals relate to decisions on preliminary matters, namely, the recusal of the Chairperson of the Tribunal and a timetabling directions order in response to Mr Brown’s request for documents.
First decision – 1 December 2016
[11] In its first decision, the Tribunal declined Mr Brown’s request that the Chairperson of the Tribunal, Mr Haines QC, recuse himself.3 The Tribunal outlined the relevant law for recusal, including the well-established test for apparent bias outlined in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd.4 Each of Mr Brown’s two allegations against Mr Haines were addressed before the recusal application was dismissed.
[12] The Tribunal also ordered that: Mr Brown provide further particulars of his statement of claim, including the identification of his valid complaints he has under the Act; set out the relevant facts and circumstances relied on in support of each
complaint; and limit the scope of the amended statement of claim to the facts and
3 Brown v New Zealand Post Ltd [2016] NZHRRT 37.
4 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at
[3]–[5].
circumstances relevant to each complaint. Mr Brown has not since filed an amended statement of claim.
Second decision – 1 May 2017
[13] The second decision of the Tribunal is a minute of the Tribunal dated 1 May
2017, following Mr Brown’s request for documents. The following case management directions were made:
(a) timetable directions for a notice of opposition, for evidence and submissions of the parties;
(b) a direction that the matter would be determined on the papers; and
(c) a direction reserving leave for either party to make a further application if necessary.
Mr Brown’s position
[14] Mr Brown has filed appeals against two decisions of the Tribunal. In his notice of appeal, Mr Brown advances the following grounds for his appeal:
(a) the Chairperson of the Tribunal in Wellington, asserted in early 2013 during a teleconference that Mr Brown’s claim against the Otago Polytechnic could not be successful;
(b)the Chairperson endeavoured to mislead justice by violating ss 111 and 113 of the Crimes Act 1961 by conducting a “specious Tribunal hearing” that failed to be balanced by summonsing the plaintiff’s witnesses and condoned the endeavour of the lawyer for Otago Polytechnic to discredit evidence; and
(c) the Chairperson unethically violated the plaintiff’s rights granted
under ss 19(1), 25 and 27(1) of the New Zealand Bill of Rights Act
1990.
[15] Mr Brown seeks that the Chairperson be disqualified from presiding over all of his cases before the Tribunal. He also opposes NZ Post’s strike-out application as vexatious, frivolous and not supported by the weight of the evidence.
NZ Post’s position
[16] NZ Post has filed a strike-out application and opposes Mr Brown’s appeals.
[17] NZ Post submits that although the notice of appeal appears to take issue with both the recusal decision and the timetabling directions order, the grounds set out appear to only relate to the recusal decision. It contends that these grounds appear to repeat factual allegations and do not identify any error (factual or legal) in the decision of the Tribunal. The details of NZ Post’s opposition are dealt with under the analysis section, which follows.
Relevant law
Strike-out principles
[18] Rule 15.1 of the High Court Rules 2016 provides the basis for a strike-out application:
15.1 Dismissing or staying all or part of proceeding
(1) The court may strike out all or part of a pleading if it—
(a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b) is likely to cause prejudice or delay; or
(c) is frivolous or vexatious; or
(d) is otherwise an abuse of the process of the court.
(2) If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.
(3) Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.
(4) This rule does not affect the court's inherent jurisdiction.
[19] The well-settled principles that apply on a strike-out application were summarised by Kós J in Siemer v Judicial Conduct Commissioner:5
The jurisdiction is exercised sparingly. Causes of action may be struck out only if so untenable that they cannot succeed. Facts pleaded are treated as true unless self-evidently speculative or false. These principles apply to judicial review as much as to general proceedings.
[20] An abuse of process can take various forms. Lord Diplock in Hunter v Chief
Constable of the West Midlands Police, referred to the power to strike out as:6
… the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.
[21] An abuse of process includes a proceeding brought for an improper purpose,7 a proceeding that attempts to relitigate matters that are already determined,8 and a proceeding brought where it is inevitable that a remedy will be refused even if one or more grounds of review are made out.9
[22] In Commissioner of Inland Revenue v Chesterfields Preschools Ltd, the Court of Appeal held that for a claim to be struck out for reason of prejudice or delay, there must be an element of impropriety and abuse of the court’s processes.10 The Court identified examples of where pleadings may be struck out as being likely to cause prejudice or delay, including an unnecessarily prolix pleading, a scandalous and irrelevant proceeding, the pleading of purely evidentiary material and irrelevant material as well as unintelligible pleadings.11 In that case, one of the claims was struck out on the grounds that the pleading comprised 419 paragraphs, included excessive pleading of evidence, was largely irrelevant and was difficult, if not
impossible to understand.
5 Siemer v Judicial Conduct Commissioner [2013] NZHC 1853 at [13].
6 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL) at 541 and relied on by Brown J in Rabson v Judicial Conduct Commissioner [2015] NZHC 714, [2015] NZAR 831 at [11].
7 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53 at [89].
8 Hunter, above n 6, at 733; Colman v Attorney-General [2013] NZCA 92; Rabson, above n 6, at
[14].
9 Maddever v Umawera School Board of Trustees [1993] 2 NZLR 478 (HC) at 502.
10 Chesterfields, above n 7, at [89].
11 Chesterfields, above n 7, at [90], [91] and [95]; and Van der Kaap v Attorney-General (1996) 10
PRNZ 162 (HC).
[23] If the defect in a pleading can be remedied, then the court would normally order an amendment of the statement of claim, rather than striking out the entire claim.12
Appeal procedure under the Human Rights Act
[24] Section 123 of the Human Rights Act provides for appeals to the High Court from the Tribunal and the basis upon which such appeals may be brought. As this is an appeal from an interim order made by the Chairperson of the Tribunal, two sections are relevant. The first is s 123(1) and the second is s 95. They are set out as follows:
123 Appeals to High Court
(1) Where any party is dissatisfied with any interim order made by the Chairperson under section 95, that party may appeal to the High Court against the whole or part of that order.
(2) A party to a proceeding under section 92B or section 92E may appeal to the High Court against all or any part of a decision of the Tribunal—
(a) dismissing the proceeding; or
(b) granting 1 or more of the remedies described in section 92I; or
(c) granting the remedy described in section 92J; or
(d) refusing to grant the remedy described in section 92J; or
(e) constituting a final determination of the Tribunal in the proceeding.
…
95 Power to make an interim order
(1) In respect of any matter in which the Tribunal has jurisdiction under this Act to make any final determination, the Chairperson of the Tribunal shall have power to make an interim order if he or she is satisfied that it is necessary in the interests of justice to make the order to preserve the position of the parties pending a final determination of the proceedings.
(2) An application for an interim order may be made,—
12 Chesterfields, above n 7, at [89].
(a) in the case of proceedings under section 92B(1), (2), (3), or (4), by the person or body bringing the proceedings; and
(b) in the case of proceedings under section 92E, by the
Commission.
…
[25] The time for bringing an appeal is contained under s 123(4), being 30 days after the date of the Tribunal’s decision. Section 123(4) provides:
(4) Every appeal under this section shall be made by giving notice of appeal within 30 days after the date of the giving by the Tribunal in writing of the decision to which the appeal relates.
[26] NZ Post’s strike-out application is against Mr Brown’s two appeals. I deal with the strike-out application in respect of each appeal separately, under each of the relevant grounds of the strike-out.
First appeal
[27] Mr Brown filed his appeal against the Tribunal Chairperson’s decision of
1 December 2016 in the Dunedin High Court. The notice of appeal was date- stamped in the Dunedin Registry of the High Court on 23 December 2016. The notice was accompanied by a letter to the Registrar, also dated 23 December 2016 together with an affidavit from Mr Brown dated 23 December 2016.
[28] NZ Post submits that there are four reasons that the first appeal should be struck out. I deal with each of those reasons below.
Time limit for appeal
[29] NZ Post claims that this appeal was not filed or served within the required timeframe under s 123(4) of the Act and there is no provision made for an extension of time beyond that fixed in the section.13
[30] The decision of the Tribunal was delivered to the parties in writing on
1 December 2016. NZ Post claims that Mr Brown did not serve the notice of appeal
on NZ Post (by providing it to NZ Post’s solicitor) until 6 January 2017, six days
13 Citing Dawson v Chief Executive Officer of the Ministry of Social Development [2007] NZCA
94 at [12].
after the expiry of the appeal period. Section 123(4) of the Act requires the appeal to be filed within 30 days after the date of the Tribunal’s decision, to which the appeal relates. NZ Post further submits that the notice of appeal was not accepted for filing in the High Court under r 20.6 of the High Court Rules, until at least 19 January
2017.
[31] However, Mr Brown submits that his notice of appeal was filed in the Dunedin High Court on 23 December 2016. Although filed in the High Court within the prescribed statutory time, an issue arose about the correct registry in which the appeal should have been filed. Because the first respondent to the appeal was the Chair of the Tribunal with its location in Wellington, the appeal was required to be filed in the registry of the High Court at Wellington.
[32] Mr Brown referred to the usual appeal time limit as being 20 working days, with the exclusion of public holidays, from the calculation of the appeal time limit. In this case, however, the legislation does not exclude public holidays and the 30 day time limit runs from the date of the Tribunal’s decision, regardless of the date upon which the time limit expires.
[33] The documentation, which Mr Brown filed with the Dunedin High Court Registry, clearly indicates his intention to file an appeal with accompanying affidavits. Mr Brown’s letter of 23 December 2016 refers to two affidavits filed with the notice of appeal. In the bundle of documents and the High Court file, one of the affidavits is sworn by Mr Brown dated 23 December 2016. The 30 day appeal period expired on 31 December 2016, in the statutory holiday time between Christmas Day and New Years Day.
[34] In the circumstances, I am not prepared to find that the appeal was filed out of time, as the Dunedin High Court Registry date-stamped the notice of appeal on
23 December 2016 and appeared to accept it for filing. The High Court retained it during the holiday period, when the 30 day appeal period expired. I do not uphold NZ Post’s submission that it was filed out of time, in these circumstances.
No jurisdiction to hear appeal
[35] NZ Post submits that the matters raised by Mr Brown in his appeal are not matters that the High Court has jurisdiction to hear. Section 123(2) of the Act sets out the categories of proceeding which can qualify for appeal to the High Court. NZ Post submits that the only one that could apply is s 123(2)(e), where there is a “final determination” of the Tribunal. In Attorney-General v Child Poverty Action Group Inc the High Court observed that Parliament has prescribed that final determinations
of the Tribunal are the only decisions that can be appealed.14 The Court said:15
Parliament has decided that the only decisions of the Tribunal that can be appealed are final determinations of the Tribunal in one form or another. They could if they had chosen, have allowed appeals from rulings on preliminary points. They chose not to do so.
[36] The High Court held that a decision not to strike out or dismiss a claim was an interlocutory decision and there was no right of appeal from such a decision.
[37] Mr Brown made strong submissions that in his view, the Chairperson has violated a number of Acts, including the Human Rights Act and that he does not believe the Chairperson is impartial. Mr Brown refers to his proceedings against the Otago Polytechnic as an example of the Chairperson’s partiality. Mr Brown submits that his rights have been disregarded in the past and that he wishes to be heard from a fair and impartial decision-maker. I cannot uphold Mr Brown’s submissions as they do not address the legislative prerequisites for the appellate jurisdiction.
[38] By reference to the legislation and the Child Poverty Action Group decision, the Chairperson’s non-recusal decision was an interim decision and is interlocutory in nature. It is not a final determination of the Tribunal. The appeal from that decision therefore, does not come within the appellate jurisdiction of the High Court as defined by s 123(2) of the Act. Nor does it come within s 95 of the Act, as the order was not necessary in the interests of justice to preserve the position of the parties pending a final determination of the proceedings. I accept NZ Post’s
submission that the decision is preliminary in nature, concerning a ruling on whether
14 Attorney-General v Child Poverty Action Grop Inc [2007] NZAR 67 (HC).
15 At [21].
the Chairperson meets the threshold test for recusal, and does not bear on the substantive rights of Mr Brown.
[39] I find that the High Court has no jurisdiction to hear the appeal from the interim decision of non-recusal.
No substantive merit
[40] Although the lack of jurisdiction is determinative of the strike-out application in relation to the first appeal, for completeness, I record that the Tribunal correctly identified the relevant legal principles relating to recusal and applied them to the circumstances of this case. Although Mr Brown extensively canvassed his reasons for appealing the non-recusal decision of the Chairperson, he has not identified any factual or legal error in the decision of the Tribunal. There is no substantive merit in the appeal.
Second appeal
[41] The second appeal was filed by Mr Brown against the minute issued by the Tribunal’s Chairperson dated 1 May 2017, in which the Tribunal treated Mr Brown’s request for documents as an application in respect of which NZ Post was entitled to be heard. The Tribunal gave the following specific directions:16
Directions
[2] As New Zealand Post Ltd is entitled to be heard on the application the following directions are made:
[2.1] Should New Zealand Post Ltd wish to be heard on the application its notice of opposition, evidence and submissions are to be filed and served by 5pm on Friday 26 May 2017.
[2.2] Any evidence and submissions by Mr Brown in reply are to be filed and served by 5pm on Friday 9 June 2017.
[2.3] The application will then be determined following a hearing on the papers that is, without an oral hearing.
[2.4] Leave is reserved to both parties to make further application should the need arise.
16 Brown v New Zealand Post Ltd HRRT 037/2016, 1 May 2017.
[42] Mr Brown filed an appeal dated 1 June 2017 and served it on NZ Post on
2 June 2017. By way of background, NZ Post opposed Mr Brown’s application and
on 14 June Mr Brown’s request for documents was declined by the Tribunal.
No jurisdiction to hear appeal
[43] NZ Post submits that the minute of the Tribunal of 1 May 2017 was a timetabling direction, not a substantive determination of Mr Brown’s request for documents. As with the first appeal, NZ Post again submits this appeal concerns an interlocutory decision and is not a final determination of the Tribunal. NZ Post again submits that this appeal does not come within the appellate jurisdiction of the High Court, by virtue of s 123(2) of the Act.
[44] For the same reasons as I upheld NZ Post’s submission on the lack of appellate jurisdiction in respect of the first appeal, I also uphold its similar submission in respect of the second appeal. The Tribunal’s minute timetabling the next steps in a proceeding is a directions minute and is not a final determination of the proceedings. The High Court has no jurisdiction to entertain an appeal from an interim decision, such as a timetabling direction. Although the Tribunal declined Mr Brown’s request for documents on 14 June 2017, it is not a final determination, as it is an order that is interlocutory in nature. I accept NZ Post’s submission that the Tribunal did not close off the possibility that the application could be renewed at a future point. In any event, the decision is not determinative of the proceedings and is not the subject of the second appeal. The 14 June 2017 decision was not appealed.
Appeal lacks merit
[45] The timetabling decision of the Tribunal related to a request for documents by Mr Brown. The decision of the Tribunal to require Mr Brown to provide evidence and submissions in response to NZ Post’s opposition to his request for documents was orthodox and accompanied by detailed reasoning. It was necessary in the circumstances of this case. As the Tribunal has a discretion to make directions as to the conduct of proceedings before it, which extends to case management and timetabling directions, the appeal lacks substantive merit. Nor has Mr Brown identified any factual or legal error in the decision of the Tribunal.
Conclusions
[46] Although I have found the first appeal was brought in time, Mr Brown’s appeals cannot succeed. Primarily, the decisions he seeks to appeal are not final determinations made by the Tribunal and so are not subject to appeal to the High Court under s 123(2) of the Act. They are both decisions on preliminary matters before the substance of his claim has been heard and are not within the appellate jurisdiction of the High Court.
[47] As the appeals disclose no reasonably arguable ground of appeal, the appeals are struck out. Mr Brown will be entitled to appeal any decision of the Tribunal, once a final determination on the substantive proceeding is made.
Result
[48] NZ Post’s strike-out application is granted.
[49] Mr Brown’s appeals dated 1 December 2016 and 1 June 2017 are struck out.
Cull J
Solicitors:
Russell McVeagh
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