Clarke v Racing Industry Transition Agency (Formerly New Zealand Racing Board)
[2020] NZCA 163
•15 May 2020 at 2.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA543/2019 [2020] NZCA 163 |
| BETWEEN | NEIL MARTIN CLARKE |
| AND | RACING INDUSTRY TRANSITION AGENCY (FORMERLY NEW ZEALAND RACING BOARD) |
| Court: | Brown and Clifford JJ |
Counsel: | Applicant in person |
Judgment: | 15 May 2020 at 2.00 pm |
JUDGMENT OF THE COURT
The application for an extension of time is granted for a period of 20 working days from the date of this judgment.
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REASONS OF THE COURT
(Given by Brown J)
On 16 October 2019 the applicant filed an appeal in this Court from a judgment of the High Court declining his claim against the Racing Industry Transition Agency (the Agency) and three other defendants.[1] He did not file a case on appeal or apply for the allocation of a hearing date by 16 January 2020, being the date three months after bringing his appeal as required by r 43(1) of the Court of Appeal (Civil) Rules 2005 (the Rules). He now applies for an extension of time under r 43(2). The application is opposed by the respondent.
Background
[1]Foster v Racing Industry Transition Agency (formerly New Zealand Racing Board) [2019] NZHC 2362.
As a result of various incidents of alleged abuse and overtly sexualised approaches towards its staff members, the Agency refused to accept bets which Mr Clarke wished to place at the Trax Bar TAB.
Mr Clarke brought a proceeding alleging that his rights under s 42 of the Human Rights Act 1993 (which relates to a refusal to allow a person to use any place which members of the public are entitled to enter or use, or to refuse use of any facilities in such a place), s 8 of the New Zealand Bill of Rights Act 1990 (NZBORA) (the right not to be deprived of life), s 14 of NZBORA (freedom of expression), s 17 of NZBORA (freedom of association) and s 18 of NZBORA (freedom of movement). He sought a declaratory judgment that the Agency must accept the bets he wished to place there. He contended that by refusing to accept bets which he wished to place at that branch the Agency had illegally discriminated against him in breach of the Human Rights Act.
In support of his claim that he had been discriminated against, Mr Clarke submitted that he had sustained a mental injury and implied that it was a result of that disability that the Agency and its staff had conspired to discriminate against him.
Dismissing the claim, Churchman J recorded that there was no evidence before the Court confirming the nature of Mr Clarke’s claimed disability. The Agency’s staff denied any knowledge of any such disability. The Judge concluded that the Agency’s refusal to allow the applicant to place bets at the relevant branch was not because of any disability he might have but on account of his obnoxious behaviour.[2]
[2]At [31].
Mr Clarke appealed from that judgment on the following grounds:
1That the defendants did not present any of the defendants’ witnesses to be cross-examined.
2That the Judge erred in numerous areas of the case.
3There are further submissions to be made in this case.
Relevant principles
The principles applicable to applications for extensions of time under r 43 are essentially the same as those explained by the Supreme Court in Almond v Read relating to applications under r 29A of the Rules for leave to file appeals out of time.[3] The ultimate question when considering the exercise of a discretion is what the interests of justice require. Factors identified as likely to require consideration include:[4]
(a)the length of delay;
(b)the reasons for delay;
(c)the conduct of the parties, particularly of the applicant;
(d)any prejudice or hardship to the respondent or to others with a legitimate interest in the outcome; and
(e)the significance of the issues raised by the proposed appeal, both for the parties and more generally.
[3]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801; and Yarrow v Westpac New Zealand Ltd [2018] NZCA 601 at [4].
[4]At [38].
While the Court recognised that the merits of a proposed appeal may, in principle, be relevant to the exercise of the discretion to extend time, a decision to refuse an extension of time based substantially on that ground should be made only where the appeal is clearly hopeless. The lack of merit must be readily apparent.[5]
The application and grounds of opposition
[5]At [39](c).
Mr Clarke’s application for extension of time under r 43 filed on 16 January 2020 simply stated:
1That I am applying for legal aid.
2That due to the Christmas period that I have been unable to get legal advice.
Mr Clarke did not file any written submissions in support of the application despite the Registry sending a letter to him reminding him of the need to do so. The only communication received from him is a document filed on 18 February 2020 which records:
1That none of the defendants did not turn up in person so I was unable to question them about the questions that were in my Statement of Claim.
2That I did not receive the respondent’s defence until the day after the hearing, by this occurring I was unable to see their defence.
In its opposition to the application the Agency submits that Mr Clarke is a prolific lay litigant who has simply failed to prosecute his appeal diligently although he has had ample time to apply for legal aid. It further submits leave should be declined for the reason that the appeal is without merit and has no prospects of success.
Discussion
We first address the merits-based ground of opposition. The Agency contends that the appeal is rendered clearly hopeless because s 65 of the Racing Act 2003 provides a complete defence to the claim. Section 65 states:
Bets may be refused
The Agency of any racing club may refuse to accept all or any part of a bet without giving any reason for doing so.
The High Court concluded that Mr Clarke’s claim could not succeed in the face of s 65. The Court reasoned that there is no right under NZBORA or any other statute for a person to be able to place a bet wherever they choose. But even if there were such a right, it would be subject to such limitations identified in s 5 of NZBORA and s 65 is one such limitation.
A decision on a leave application determined on the papers is not the most suitable vehicle for a determination of such a significant issue. Suffice to say that we do not consider that s 65 should necessarily be construed in the absolute way that the Agency advances. Consequently we doubt that the appeal reaches the high threshold which the Supreme Court explained in Almond v Read:[6]
Moreover, any assessment of the merits must take place against the background of this Court’s description of the nature of a general appeal in Austin, Nichols. Accordingly, a decision to refuse an extension of time based substantially on the lack of merit of a proposed appeal should be made only where the appeal is clearly hopeless. An appeal would be hopeless, for example, where, on facts to which there is no challenge, it could not possibly succeed, where the Court lacks jurisdiction, where there is an abuse of process (such as a collateral attack on issues finally determined in other proceedings) or where the appeal is frivolous or vexations. The lack of merit must be readily apparent. The power to grant or refuse an extension of time should not be used as a mechanism to dismiss apparently weak appeals summarily.
[6]Almond v Read, above n 3, at [39](c) (footnote omitted).
We turn to consider the other relevant factors. The application for an extension was made at the end of the three month period prescribed in r 43(1). With reference to the two reasons advanced in Mr Clarke’s application, the Christmas period might legitimately be invoked so far as the third month is concerned but does not explain why legal advice could not have been taken earlier.
Mr Clarke has not provided any verification of the fact of his application or any report as to its progress. An inquiry by the Registry of the Legal Aid Services discloses that Mr Clarke is not in receipt of legal aid and has no pending application for legal aid.
We do not consider that there is anything about Mr Clarke’s conduct specific to the present application which should weigh against granting an extension of time and there is no suggestion that the Agency would suffer prejudice or hardship if further time was permitted for Mr Clarke to comply with r 43.
The reasons which Mr Clarke has advanced in support of his application are weak. Furthermore he has failed in the four month period since the date of his application to take any steps to remedy the position. However in the overall interests of justice having regard to the fact that he is self-represented, we are prepared to extend one further opportunity for him to get his appeal on track.
Mr Clarke is to file the case on appeal and apply for a hearing date within 20 working days from the date of delivery of this decision. Failure to comply with this timetable will result in his appeal being deemed to be abandoned.
Result
The application for an extension of time is granted for a period of 20 working days from the date of this judgment.
Solicitors:
Minter Ellison Rudd Watts, Wellington for Respondent
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