Director of Human Rights Proceedings v Grupen HC Auckland CIV-2010-404-008332

[2011] NZHC 436

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-008332

UNDER  the Privacy Act 1993 and the Human

Rights Act 1993

IN THE MATTER OF     an application for leave to appeal against a decision of the High Court pursuant to section 124(2) of the Human Rights Act

1993

BETWEEN  DIRECTOR OF HUMAN RIGHTS PROCEEDINGS

Applicant

ANDRUTH MARIE GRUPEN Respondent

Hearing:         20 April 2011

Appearances: R Stevens for Applicant

Respondent in Person

Judgment:      28 April 2011 at 11:00 AM

JUDGMENT OF VENNING J

ON APPLICATION FOR LEAVE TO APPEAL

This judgment was delivered by me on 28 April 2011  at 11.00 a.m., pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Office of Human Rights Proceedings, Auckland

Crown Law, Wellington (P Gunn) Copy to:     R Stevens, Auckland

R M Grupen, Auckland

DIRECTOR OF HUMAN RIGHTS PROCEEDINGS V GRUPEN HC AK CIV-2010-404-008332 28 April 2011

Introduction

[1]      In a judgment delivered on 15 March 2011 I held that the appellant had brought her appeal against a decision of the Human Rights Review Tribunal within time, in particular that she had served the Director of Human Rights Proceedings (the Director) within time.  The Director seeks leave to appeal that decision to the Court of Appeal.

Background

[2]      In a decision delivered on 19 November 2010 the Human Rights Review Tribunal declared the appellant in breach of principle 6 of the Privacy Act 1993 and awarded damages against her.

[3]      The appellant filed an appeal against that decision and served copies of the appeal on the Tribunal and the Director.  The time for appealing under s 123(4) of the Human Rights Act 1993 expired on 20 December 2010.   The time period for appealing in accordance with s 123(4) of the Act is a mandatory one:   Attorney- General v Howard.[1]   The Director took the view the appeal was out of time because the appeal document did not come to his attention until 21 December 2010.

[1] Attorney-General v Howard [2010] NZCA 58, [2011] 1 NZLR 58.

[4]      The  decision  had  been  forwarded  to  the  appellant  under  letter  from  the

Tribunal’s unit of the Ministry of Justice. The letter stated:

... please ensure that both the Director and the Privacy Commissioner are served with copies of the notice of appeal, in addition to the parties referred to in Rule 20.6 of the High Court Rules.

Their addresses for service are:

The Director of Human Rights Proceedings

PO Box 6751

Wellesley Street

AUCKLAND

...

[5]      The appellant arranged for a courier pack containing the notice of appeal to be delivered by a courier company to post office box 6751 Wellesley Street, Auckland.  The courier records noted that the pack containing the notice of appeal was delivered to the Director’s post office box at 7.00 a.m. on 20 December 2010.

[6]      The Director’s evidence was, however, that the courier pack was not uplifted

from the post box and opened until the next day, 21 December 2010.

[7]      I rejected Mr Stevens’ submission for the Director that the notice of appeal was not received, in terms of r 6.6(1), until it was opened by the Director on 21

December 2010.  I held that the deeming provision in r.6.6(1) did not prevent proof of  service  of  the  documents  by  other  means  and  that  as  there  was  proof  the documents had been delivered to the post office box on 20 December 2010 the notice of appeal was received by the Director at that time and service was within time.

[8]      The Director seeks leave to appeal from that decision.

Jurisdiction

[9]      An appeal from decisions of this Court to the Court of Appeal under the

Human Rights Act 1993 is provided for by s 124. The relevant provisions are:

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.

[10]     The first issue is one that arises on applications for leave to appeal from time to time in cases such as this.   The section is intended to apply in circumstances where there has been a substantive determination of this Court on appeal from the Tribunal.    The  determination  to  which  this  current  application  relates  was  a procedural determination as to whether the appeal had been brought within time.  It was not a substantive determination in the sense that the merits of the appeal were dealt with.

[11]     Mr  Stevens  submitted  that  the  judgment  of  15  March  2011  was  a determination of the High Court on a question of law that had arisen in the proceedings so that the section applied.  While acknowledging it was not an appeal from a second determination on the merits, he addressed his submissions to the

Waller v Hider[2]test which has effectively been incorporated in the statute by s

124(2). Ms Grupen did not raise an issue as to jurisdiction for the appeal.   She addressed the application for leave on its merits.

[2] Waller v Hider [1998] 1 NZLR 412 (CA).

[12]     In the absence of argument on the point I proceed on the basis s 124(1)

provides jurisdiction to grant leave to appeal in this case.

The issue

[13]     I accept that the point Mr Stevens wishes to argue, namely whether the notice of appeal was received by the Director when delivered to his post office box, or put another way, that it was not received until it came to the Director’s attention, is a question of law capable of argument.

[14]     The only issue then for the Court is whether the question of law 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.

[15]     The rationale underlying the imposition of the requirement under s 124(2) is that the valuable and limited judicial resources of the Court of Appeal should not be

engaged unless the alleged error of law is of sufficient importance.   That is particularly so where, as here the matter involves a procedural point.

The decision

[16]     Mr Stevens submitted that the judgment was effectively a decision on the general application of r 6.6 and would have a potentially wide impact on all cases within the jurisdiction of the High Court where the parties gave a post office box as their address for service.   He submitted that, on that basis, there was a general interest much broader than the interests of just the parties to this case.  He submitted that general importance supported the application for leave.

[17]     While I accept that r 6.6(1) potentially applies to all proceedings, there are a number of factors particular to this case that affect the broad application of the decision.  The first is that so far as appeals are concerned, the issue was particularly relevant because the time for appealing was constrained by statute.  Where the time is not so constrained it could be extended by application of r 20.4(3).  Further, where the issue is service in the case of general appeals, r 20.7 could be invoked.

[18]     The second feature of this particular case, which will be rare, is that rather than there being proof of when the documents were posted, which would engage r 6.6(1)(a)(i), there is proof that the document was delivered to the post office box on

20 December 2010.  The case was determined on that basis.  There will be a limited number of proceedings where there will be evidence of the details of actual delivery to a post office box as opposed to evidence of posting.

[19]     The last particular feature of this case is that the letter from the Tribunal’s division of the Ministry directed that service was to be effected by way of the post office box.  The respondent, Ms Grupen, could be forgiven for considering that that was what was required for service rather than delivery of the documents to the Director or the physical address of his office.

[20]     For the above reasons, while it may be helpful to have a decision of the Court

of Appeal as to what is meant by “received” in the context of r 6.6(1)(a), the factual

circumstances in which the issue will become relevant will, in my judgment, be much more limited than Mr Stevens submitted.  I do not consider it to be a matter of general or public importance sufficient to justify the grant of leave. The decision can be seen as essentially confined to the particular facts of this case.

Result

[21]     For those reasons the applicant fails to satisfy the test in s 124(2) and the application for leave must be declined.

Directions for appeal

[22]     Ms Grupen’s appeal is for hearing on 26 July 2011.  The timetable fixed in the judgment of 15 March 2011 is varied as follows:

(a)      The appellant is to file and serve a common bundle of any numbered and indexed copies of all relevant documents in addition to the transcript by 2 May 2011.   There is an issue about one of the documents to be included.  It has been agreed that the document will be included “without prejudice” and the issue of whether it is admissible will be determined by the Judge hearing the appeal.

(b)      The appellant is to file and serve the appellant’s submissions by 20

May 2011.

(c)       The respondent is to file and serve the respondent’s submissions by

3 June 2011.

Venning J