Gapuzan v District Court at Christchurch
[2014] NZHC 870
•30 April 2014
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2013-409-001381 [2014] NZHC 870
BETWEEN ROSAURO GAPUZAN
Applicant
AND
THE DISTRICT COURT AT CHRISTCHURCH
First Respondent
PRATT & WHITNEY HOLDINGS SAS Second Respondent
Hearing: 28 April 2014 Appearances:
Applicant Mr Gapuzan in Person
No appearance for First Respondent
S E Goodwin for Second RespondentJudgment:
30 April 2014
JUDGMENT OF GENDALL J
Introduction
[1] This is an application for judicial review brought by the applicant (Mr Gapuzan) in relation to a decision of the District Court given by Judge P R Kellar on 15 July 2013.
[2] At issue here is whether the District Court was first, wrong to refuse Mr Gapuzan’s request for an adjournment of the hearing before it on 15 July 2013 and secondly, wrong to strike out Mr Gapuzan’s claim before it for lack of jurisdiction.
[3] The first respondent has filed an appearance indicating that it abides the decision of the Court.
GAPUZAN v DISTRICT COURT AT CHRISTCHURCH [2014] NZHC 870 [30 April 2014]
[4] The second respondent (Pratt & Whitney) was joined to the present proceeding on 16 October 2013 following an application by the first respondent and it opposes the present judicial review application.
Background
[5] Mr Gapuzan is a former employee of Pratt & Whitney which traded as the Christchurch Engine Centre. The origins of this proceeding date back to an Accident Compensation Corporation (ACC) claim by Mr Gapuzan for injuries he says he suffered for work related gradual process injury. Mr Gapuzan’s ACC claim for treatment and cover had been declined by ACC. He claims the decision of ACC was based in part on an employer questionnaire and supporting documents provided by Pratt & Whitney.
[6] In addition an ACC review hearing was conducted by Disputes Resolution Services Limited and this was attended by officers of Pratt & Whitney as an interested party. Mr Gapuzan says Pratt & Whitney provided the Tribunal with documents and declarations which formed the basis of the decision by the Tribunal to uphold the ACC decision to decline his claim for treatment of the alleged injury.
[7] Mr Gapuzan contends that the documents and declarations provided by Pratt
& Whitney to the Tribunal were false, contradictory and misleading and thus he brought the District Court proceeding which is in question here being proceeding number CIV-2013-009-707.
[8] In his notice of claim in this District Court proceeding, Mr Gapuzan contended:
(a) That Pratt & Whitney had made statements to ACC's Disputes Resolution Services Limited and also to the Employment Relations Authority which amount to perjury under s 111 of the Crimes Act
1961; and
(b) Pratt & Whitney has breached its obligations under the Health and Safety in Employment Act 1992 by failing to take all practicable steps to ensure Mr Gapuzan’s safety while he was at work.
[9] In response, Pratt & Whitney in the District Court filed an appearance under protest to jurisdiction. Mr Gapuzan then applied to set aside this appearance under protest to jurisdiction.
[10] Before the District Court in proceeding CIV-2013-009-707 therefore were two interlocutory applications:
(a) Mr Gapuzan’s application to set aside the defendant’s appearance under protest to jurisdiction; and
(b) An application by Pratt & Whitney to strike out Mr Gapuzan’s claim before that Court.
[11] As to the adjournment application, Mr Gapuzan did not appear at the hearing of the applications on 15 July 2013 and sought an adjournment. This was refused however.
[12] Judge Kellar noted that Mr Gapuzan was seeking an adjournment of both this proceeding and a generally related proceeding involving essentially the same subject matter. This adjournment was sought for a period of about two months in Mr Gapuzan’s words “to research on the Court process, prepare and service a notice of pursuit of claim to the defendants and raise the required fees”. Mr Gapuzan had stated he had been working in Western Australia and was due to return to Christchurch only between 30 July and 4 August 2013 and then between 3 and
7 September 2013. He said he would be likely to lose his employment and be put to considerable expense and inconvenience to be present at the hearing on 15 July
2013. He sought therefore that the hearing be adjourned to fit in with the dates he was in New Zealand.
[13] On these matters, Judge Kellar noted several matters. First, he recorded that Mr Gapuzan had not appeared at the hearing on 15 July 2013, secondly, that he had failed to take any steps in the related proceeding for some 15 months and thirdly, that had also failed to appear at the first call of that other matter on 2 July 2013 when the
15 July 2013 hearing date was allocated.
[14] In fact as I understand the matter, the allocation of the hearing date on the matter in question here CIV-2013-009-707 occurred on or about 6 June 2013.
[15] Also, it is clear that on 27 June 2013 Mr Gapuzan filed in this Court what he described as a “Consent Memorandum” in proceeding CIV-2013-009-707 which sought the following orders:
(a) The plaintiff’s application to set aside the appearance under protest dated 22 May 2013 be determined on the papers.
(b) That appearances be excused in respect of the hearing set down for
12 p.m. 16 July 2013.
(c) Any further orders that the Court seeks fit. (Emphasis added)
[16] It is correct that subsequently, on 8 July 2013 and 11 July 2013, Mr Gapuzan filed further memoranda in the District Court requesting that the 15 July 2013 hearing be re-scheduled for any day between 31 July and 2 August 2013 or between
4 September and 6 September 2013.
[17] Mr Gapuzan contends that the actions of the District Court in refusing his adjournment request were in breach of s 27 of the New Zealand Bill of Rights Act
1990 and his right to natural justice, as he was denied an opportunity to present his claim and arguments before the District Court.
[18] Turning now to Pratt & Whitney’s protest to jurisdiction, this was founded on the contention that the District Court did not have jurisdiction to hear and determine Mr Gapuzan’s proceeding as:
(a) His claim arose from his former employment with Pratt & Whitney and related to alleged breaches of the employment agreement on the part of Pratt & Whitney.
(b) The Employment Relations Authority had exclusive jurisdiction to make determinations about employment relationships including matters relating to breach of an employment agreement – s 161
Employment Relations Act 2000.
(c) Mr Gapuzan’s claim was in effect a personal grievance pursuant to s
114 Employment Relations Act 2000. Mr Gapuzan required the leave of the Employment Relations Authority to raise a personal grievance, as the time that had elapsed between the end of his employment being
20 December 2011 and the filing of the current proceeding, 12 April
2013, was greater than 90 days.
[19] Mr Gapuzan’s application for Pratt & Whitney’s protest to jurisdiction to be set aside, was based on his claim that the issues raised did not relate to a breach of his employment agreement as his employment had ended on 20 December 2011 and these issues arose subsequently.
[20] The basic allegation according to Mr Gapuzan was that Pratt & Whitney breached s 111 Crimes Act 1961 by making statements to the ACC Dispute Resolution Service and to the Employment Relations Authority that amounted to perjury. On this, Judge Kellar noted also that the cause of action, and the relief which Mr Gapuzan sought, were solely within the criminal jurisdiction and the procedure adopted was inappropriate for the bringing of a criminal charge against Pratt & Whitney. And, he found that the basic claims otherwise were subject to the exclusive jurisdiction of the Employment Relations Authority.
[21] Mr Gapuzan also contended that Pratt & Whitney had breached its obligations under the Health and Safety in Employment Act by failing to take all practicable steps to ensure his safety while he was at work. And again Mr Gapuzan maintained that his claim related generally not to breaches of an employment agreement but to the actions of Pratt & Whitney that occurred after his employment ceased on 20 December 2011. Judge Kellar rejected this and considered that, if anything, this could only be seen as a personal grievance under the Employment Relations Act.
[22] As Judge Kellar found that Mr Gapuzan’s claim arose from his former employment and alleged breaches of that employment agreement, the matter in his opinion fell within the exclusive jurisdiction of the Employment Relations Authority, and the District Court did not have jurisdiction.
[23] Judge Kellar therefore struck out the plaintiff’s proceedings and ordered schedule 2B costs and disbursements against Mr Gapuzan to be paid.
Legal principles
[24] The Judicature Amendment Act 1972 enables the Court to review the exercise of statutory power – see s 4. This includes the decision of a District Court Judge on jurisdiction as is the case here – Beaumont v Bisphan.1
[25] Judicial review involves the examination of the process applied in reaching a decision. It is not a forum where the merits of a decision can be challenged.
[26] The relevant principle of judicial review here is that of natural justice which encapsulates the right to be heard. This right to natural justice is protected by s 27 of the New Zealand Bill of Rights Act which also secures the right for an individual to bring an application for a judicial review.
[27] Natural justice requires that those who will be affected by a decision have an opportunity to be heard, before a final view on a decision is reached, by an impartial decision-maker – Churms v The District Court at Auckland.2 In order to have an opportunity to provide a response or to be heard, some form of notice of the issue that is to be decided is usually required. A physical hearing however will not always be required.
Submissions for Mr Gapuzan
[28] Before me Mr Gapuzan was self represented. He put before the Court a significant amount of material. He also provided detailed and lengthy submissions.
1 Beaumont v Bisphan [1985] 4 NZAR 188.
2 Churms v The District Court at Auckland HC Auckland CIV-2007-404-6595, Heath J at para
[22].
Much of the material he presented and a good portion of his submissions however were irrelevant. In addition the major part of Mr Gapuzan’s submissions related essentially to a challenge to the merits of the District Court decision and substantive matters rather than to matters that might be properly in issue on judicial review.
[29] As to the adjournment question, Mr Gapuzan’s arguments were essentially that in refusing his adjournment request, the District Court had breached his rights to natural justice and his rights under s 27 of the New Zealand Bill of Rights Act 1990. He contended that this request and the reasons for the adjournment were clearly before Judge Kellar prior to 15 July 2013 and the adjournment should have been granted. As a result, he suggested he was not properly heard and his arguments not fairly considered by Judge Kellar.
[30] In relation to the decision in the District Court to strike out his substantive claim for lack of jurisdiction, Mr Gapuzan seems simply to disagree with the assessment made by Judge Kellar. He maintains too that the questions at issue were outside his employment relationship with Pratt & Whitney. Without more it seems that Mr Gapuzan as best as I can tell merely claims merely suggests that he had a good substantive claim against Pratt & Whitney here and that it should not have been struck out.
Submissions for Pratt & Whitney
[31] At the outset, Ms Goodwin for Pratt & Whitney noted that the decision of Judge Kellar in the District Court under proceeding CIV-2013-009-707, to which this review relates, has not been appealed by Mr Gapuzan.
[32] On the adjournment question the main submissions advanced on behalf of
Pratt & Whitney were:
(a) The District Court here carried out a proper process and acted accordingly in reaching its decisions to decline Mr Gapuzan’s request for an adjournment and to strike out the proceeding.
(b) Mr Gapuzan had not appealed the District Court decision.
(c) Mr Gapuzan was provided with an opportunity to present his claim in the District Court and indeed all material and submissions were properly considered by Judge Kellar.
(d) There had been no breach of natural justice and/or the Bill of Rights
Act 1990.
[33] Ms Goodwin for Pratt & Whitney noted that the power to grant an adjournment was a discretionary one. She remarked that Mr Gapuzan did not apply for an adjournment and provide his reasons for this until 11 July 2013 some two working days before the allocated hearing date. His reasons for seeking an adjournment were simply that the hearing date did not align with a time during which he would be in Christchurch. She submitted that there was no evidence provided by Mr Gapuzan to show that the District Court had not carried out a proper balancing exercise in reaching its decision to decline the adjournment request. Ms Goodwin suggested that the District Court acted in accordance with its discretionary power and that all expectations of it were properly complied with.
[34] Insofar as Judge Kellar’s second decision to strike out Mr Gapuzan’s claim was concerned, Ms Goodwin noted that if he was satisfied that the Court did not have jurisdiction to hear the matter then he was required to dismiss the proceeding and that is what occurred.
[35] She noted that the District Court originally accepted the filing of Mr Gapuzan’s claim and that in the time which had elapsed up to July 2013, he had been given ample opportunity to put forward his position and present his arguments. Ms Goodwin contended that in any event, an in person hearing was not necessary here for the District Court to decide whether it had jurisdiction to hear a claim.
[36] Ms Goodwin noted also that Mr Gapuzan had provided no evidence before this Court that the correct process had not been followed in the District Court. She maintained that instead, Mr Gapuzan was effectively challenging the merits of the decision reached by the District Court and that therefore this was a case more appropriate for an appeal than for judicial review.
My decision
[37] I have now had an opportunity to consider the submissions advanced on the present application from Mr Gapuzan and Ms Goodwin, and to consider the material before the Court, including all that provided by Mr Gapuzan.
[38] As to the adjournment question, it is clear that the request for this adjournment was made and reasons given only some two working days prior to the
15 July 2013 allocated hearing date.
[39] On this issue of late adjournment requests, Venning J in Provincial Finance Limited v Veda Advantage (NZ) Limited3 dealt with the principles applying to adjournment applications and stated at paras [9] and [10]:
[9] …The test for such applications was stated in O’Malley v Southern
Lakes Helicopters Limited HC Christchurch CP513/89, 4 December 1990
Tipping J as:
“…The essential question which the Court always has to consider when asked for an adjournment is whether or not that is necessary in order to do justice between the parties. One must not overlook that not only is it necessary to do justice to the party who is seeking the adjournment but also justice to the party who wishes to retain the benefit of the fixture. It is essentially a balancing exercise.”
[10] To the interests of the parties to the particular application could also be added the interests of the parties who have litigation before the Court generally. Court resources are limited. Fixtures are allocated well in advance in order to accommodate as much work as is possible. If fixtures are vacated and alternative fixture dates are required then it can lead to further substantial delays in the course of litigation generally, not only for the parties to the particular litigation. It is not a simple matter to bring further work forward as fixtures are allocated many months in advance.
[40] In my view, in balancing the interests of the parties here, the efficient administration of justice and the proper use of judicial time in reaching decisions, Judge Kellar in the District Court did not err in refusing Mr Gapuzan’s adjournment request under all the circumstances prevailing in this case. That request had been made only two working days before the hearing date for the proceeding which had
been allocated some weeks before. In addition, material and submissions from both
3 Provincial Finance Limited v Veda Advantage (NZ) Limited 5 November 2008 CIV-2006-404-
7864 HC Auckland.
parties were before the Court and I am mindful too that the decision at issue was essentially one of jurisdiction. Further, Mr Gapuzan had himself advised the District Court by memorandum dated 27 June 2013 that the application in question could be determined on the papers and he sought that appearances at the July 2013 hearing were to be excused. No explanation has been provided by Mr Gapuzan as to why he would later change his mind and request an adjournment for a hearing in person to take place.
[41] Judge Kellar also provided considered reasons for declining Mr Gapuzan’s adjournment request in his judgment, and I am satisfied he properly balanced the required considerations in exercising his discretion to refuse the adjournment request.
[42] I conclude that in referring the adjournment request, there has been no breach of Mr Gapuzan’s rights to natural justice or his rights under s 27 of the New Zealand Bill of Rights Act.
[43] So far as the decision of the District Court to strike out Mr Gapuzan’s claim is concerned, the Court’s obligations in hearing an objection to jurisdiction are provided for by r 5.49 High Court Rules which apply in the District Court by virtue of r 3.38.1 of the District Court Rules. Under this rule if the Court is satisfied that it does not have jurisdiction to hear the matter in question then the Court must dismiss the proceeding.
[44] In my view, there is a reasonable argument that an in person hearing is not necessarily required for a Court to decide whether or not it has jurisdiction to hear a claim. The test for determining an application to dismiss a claim for want of jurisdiction was set out in Stone v Newman as follows:4
The focus of the Court in considering an application to dismiss for want of jurisdiction under r 131 must be on the allegations made in the statement of claim and the affidavit evidence the plaintiff has put forward in support of them.
[45] With this in mind, I am satisfied that the relevant material for making the decision here was already before the District Court. Judge Keller considered evidence provided by both Mr Gapuzan and Pratt & Whitney in the District Court proceeding and determined that the claim was outside the jurisdiction provided for in the District Courts Act 1947. He was therefore obliged to dismiss the claim as a result of this finding.
[46] Mr Gapuzan has presented no evidence to this Court that the requisite process was not followed by the District Court. Indeed there do not appear to be any allegations of this nature in his submissions. Rather, Mr Gapuzan as I have noted above, essentially challenges the merits of the decision reached by that Court.
[47] As I see the position, even if Mr Gapuzan were to succeed in having the District Court decision overturned by his present judicial review application, this would not necessarily assist him in having the jurisdictional issues determined. In my view the case would in all likelihood be struck out again for lack of jurisdiction. Relief by way of judicial review has been declined where there is inevitability of the
same outcome – Whistling v Medical Practitioners Disciplinary Committee.5
[48] In conclusion I am satisfied that the District Court , in the District Court Rules and the District Courts Act 1947 and that it acted properly in reaching its decision to strike out the proceeding number CIV-2013-009-707. Mr Gapuzan’s proper remedy was to appeal this decision which he did not do.
[49] And so far as the adjournment issue is concerned, I am satisfied there has been no breach of natural justice or of the New Zealand Bill of Rights Act 1990 here. Mr Gapuzan had an opportunity to be heard before a final view on this decision was reached by the District Court as an impartial decision-maker. He was given quite some notice and provided with a hearing date to present his claim in person but requested it be adjourned very much at the eleventh hour.
Result
[50] For all these reasons Mr Gapuzan’s application for judicial review is declined.
[51] As to costs, I see no reason here why Pratt & Whitney as the successful party in opposing the present application should not be entitled to an award of costs in the usual way.
[52] Costs are therefore awarded to Pratt & Whitney on this application on a category 2B basis together with disbursements (if any) as approved by the Registrar.
...................................................
Gendall J
Solicitors:
Lane Neave, Christchurch
Copy to Applicant
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