Gorgus v Chief Executive Department of Corrections
[2024] NZHC 3480
•20 November 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-588
[2024] NZHC 3480
UNDER section 124 of the Human Rights Act 1993 IN THE MATTER
of leave to appeal
BETWEEN
ASHOR GORGUS
Applicant
AND
CHIEF EXECUTIVE DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 23 October 2024 Appearances:
N W Taefi KC for Applicant
S B McCusker and K Budgen for Respondent
Judgment:
20 November 2024
JUDGMENT OF GRICE J
(Application for leave to appeal)
Introduction
[1] On 25 March 2024 this Court dismissed an appeal brought by Mr Gorgus against a decision of the Human Rights Review Tribunal (the Tribunal),1 which had found that the Chief Executive of the Department of Corrections (Corrections) interfered with Mr Gorgus’ privacy in certain respects, but had declined to award damages for humiliation, loss of dignity and injury to feelings under s 88(1) of the
1 Gorgus v Corrections [2024] NZHC 634 [High Court decision]. This judgment incorrectly refers to the 2020 Privacy Act and relevant sections. The sections which were the focus of the appeal are not materially different between the old and the new Act. Therefore that judgment is not affected by the incorrect reference to the legislation.
GORGUS v CHIEF EXECUTIVE DEPARTMENT OF CORRECTIONS [2024] NZHC 3480 [20 November 2024]
Privacy Act 1993 (the Act) (the damages section).2 The scope of the appeal was limited to the Tribunal’s decision not to award those damages.
[2] Before the Tribunal, Mr Gorgus contended that Corrections had interfered with his privacy by breaching information privacy principle 6 (access to personal information), which is contained in s 6 of the Act. The interferences related to delays in responding to three requests for personal information made by Mr Gorgus while he was in custody. Mr Gorgus sought release of the withheld information, and damages of $40,000 as compensation for humiliation, loss of dignity, and injury to feelings under s 88 of the Act.
[3] The Tribunal found that Corrections had “generally discharged” its burden of proving that the information was properly withheld under the Act.3 However, it had not discharged that burden with respect to a “small amount of information”, 4 and also interfered Mr Gorgus’ privacy in respect of two of the requests by failing to respond within the timeframe prescribed by the Act.5 The Tribunal made a declaration under s 85(1)(a) of the Act to that effect,6 and made orders that Corrections provide Mr Gorgus with the information that had been unlawfully withheld.7 However, it declined to make any award of damages under s 88.8 It found there was no material link between Mr Gorgus being aggrieved and the interferences with his privacy.9 The Tribunal found his hurt and humiliation was caused by general frustration at the loss of his employment position and with the prison system as a whole, evidenced by his belief that Corrections officers were acting maliciously in failing to respond to his requests.10
2 Gorgus v Corrections [2023] NZHRRT 22 [Tribunal decision].
3 Tribunal decision, above n 2, at [55].
4 At [55].
5 At [31].
6 At [79] and [118.1].
7 At [118.2].
8 At [117].
9 At [117].
10 At [113] and [114].
[4] On appeal to the High Court, Mr Gorgus challenged the decision not to award damages. This Court upheld the Tribunal’s finding that the interferences with Mr Gorgus’ privacy did not cause emotional distress, observing that:11
[t]here was ample evidence upon which the Tribunal could find that Mr Gorgus was frustrated by the system and the events referred to in the reports sought rather than the delay in the provision of the information.
[5] The Court further held that the Tribunal did not err in taking into account Mr Gorgus’ personal characteristics, in particular the fact that he was of “robust character”, in assessing the effect of the interference on him and determining whether this was causal of his emotional distress.12 In addition, it dismissed the argument that Mr Gorgus had suffered a “loss of dignity”.13
[6] Mr Gorgus now seeks leave to appeal to the Court of Appeal. Corrections opposes the granting of leave.
[7] In the course of preparing this judgment, I noticed that the High Court decision had referred to the Privacy Act 2020, rather than the Privacy Act 1993, which was the correct Act referred to by the Tribunal. Submissions by counsel for both the applicant and the respondent on the application for leave to appeal also referred to the 2020 Act. However, as the relevant sections are substantively the same, this makes no material difference to the findings of the judgment, nor to the content of counsel’s submissions. That said, I have in the main referred to the equivalent sections under the 1993 Act, rather than the sections under the 2020 Act, in this judgment.
Legal principles on application for leave to appeal
[8] Section 124(1) of the Human Rights Act 1993 provides that any party to any proceedings may, with leave of the High Court, appeal to the Court of Appeal against a determination of the High Court on a question of law arising in those proceedings. The High Court may grant leave if it is of the opinion that the question of law is one
11 High Court decision, above n 1, at [45].
12 At [58]–[60].
13 At [88].
which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for its decision.14
[9] The approach to be taken is similar to that applied generally to applications for leave to bring a second appeal, and involves three requirements:15
(a)That the appeal involves a question of law.
(b)That the question of law is of general or public importance, or the appeal involves some other feature.
(c)That this importance, or feature, means that a second appeal is warranted.
[10] The question of law raised on appeal must be “capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal”.16 Furthermore, the question must be one “arising in those proceedings”, which suggests that there must have been legal argument in respect of that question before the first appeal court.17
[11] The Court of Appeal recently observed that the formula to be applied is “not unique to the Human Rights Act”,18 and cited the applicable principles set out in Cook v Housing New Zealand Corp, which concerned a proposed appeal pursuant to similar provisions in the Residential Tenancies Act 1986:19
[3] Section 120(3) provides that leave for a further appeal to this Court may only be granted if, in the opinion of the Court, the appeal involves a question of law that, because of its general or public importance or for any other reason, ought to be submitted to this Court for decision. This is a high threshold. It has been emphasised on many occasions that on a second appeal (or in this instance a third appeal) this Court is not engaged in the general correction of errors. Its primary function is to clarify the law. It is not every
14 Section 124(2).
15 Hoban v Attorney-General [2023] NZHC 222 at [3], citing Waller v Hider [1998] 1 NZLR 412 (CA) at 413.
16 Waller v Hider, above n 15, at 413.
17 See for example former s 144(1) of the Summary Proceedings Act 1957, which permitted leave to the Court of Appeal “on a question of law arising in any general appeal”. With respect to this section, the Court of Appeal noted in Candy v Auckland City Council CA371/02, 25 February 2003 at [14] that: “It follows that the judgment of the High Court which the party seeks to challenge must have been asked to address the question. It would be contrary to the policy of general finality of the first appeal to allow leave to bring a second appeal raising a new question of law not raised in the High Court.”
18 Dotcom v Crown Law Office [2024] NZCA 260 at [39].
19 Cook v Housing New Zealand Corp [2018] NZCA 270 (footnote omitted).
alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been considered on a number of occasions.
[12] In determining whether a question of law arises in the proposed appeal, the comments of the Supreme Court in Bryson v Three Foot Six Ltd are of assistance:20
[25] An appeal cannot, however, be said to be on a question of law where the fact-finding Court has merely applied law which it has correctly understood to the facts of an individual case. It is for the Court to weigh the relevant facts in the light of the applicable law. Provided that the Court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact-finding Court, unless it is clearly insupportable.
Grounds of appeal
[13]Mr Gorgus seeks to appeal the decision of this Court on the following grounds:
(a)The Court adopted an objective approach to the analysis of whether the appellant suffered humiliation and injury to feelings as a result of the interferences with his privacy, where a subjective analysis was necessary.
(b)The Court took account of an irrelevant matter, being the appellant’s personal characteristics, in determining whether the appellant suffered humiliation, loss of dignity, and injury to feelings.
(c)The Court erred in finding that loss of dignity requires some degree of marginalisation or dehumanisation.
(d)The Court failed to consider in determining whether to award damages, New Zealand’s internationally recognised privacy obligations and the standards in relation to the privacy of personal information, including the OECD Guidelines and the International Covenant on Civil and Political Rights (the ICCPR).
20 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721, cited in Dotcom v Crown Law Office, above n 18, at [41].
[14] Ms Taefi KC, for the applicant, submits that the prospective appeal raises matters of general and public importance relating to an effective remedy for interference with privacy, the approach to damages under the relevant section of the Act,21 and the scope of the Prisoners’ and Victims’ Claims Act 2005.
Ground 1: Approach to causation
[15] Ms Taefi submits that the Court adopted an objective approach to analysing whether Mr Gorgus suffered humiliation and injury to feelings as a result of the interferences with his privacy. She says a subjective analysis was required. She expresses concern about a trend of attributing a plaintiff’s distress to their frustration with systemic issues rather than a breach of privacy, suggesting that this amounts to implicitly discrediting the plaintiff’s credibility, and fails to account for the fact that causes of such distress are often interconnected. She further submits that if a finding were made that Mr Gorgus’ evidence was not credible, it should have been done so explicitly.
[16] I understand Ms Taefi to submit that where an interference with privacy has been made out, as here, there should be a “rebuttable presumption” in favour of a plaintiff’s evidence that the interference was a material cause of their distress. She says that the case law is presently inconsistent as to whether a subjective or objective approach is taken to each head of damage under the damages section of the Act. In this case, she contends, the Court took an objective approach by requiring Mr Gorgus to demonstrate that there was some basis in the circumstances of the interference or some other contextual factor from which an inference of hurt, humiliation, or injury to feelings could appropriately be drawn.22
[17] Mr McCusker, for the respondent, notes that this appears to be a new legal argument, and is therefore not available to be raised on appeal. He says the arguments raised on this ground were previously rejected by the Court, however that was in the context of assessing whether the Tribunal erred in its assessment of the evidence. It is only now that an issue is raised with the “objective” approach taken to the assessment
21 Ms Taefi referred to s 103(1)(d) of the Privacy Act 2020, which is the equivalent of s 88(1)(c) of the 1993 Act.
22 High Court decision, above n 1, at [61].
of damages, which the appellant had previously appeared to accept was assessed subjectively.23
[18] In any event, as Mr McCusker submits it is not clear that, however framed, Mr Gorgus’ argument gives rise to a question of law. The question of whether Mr Gorgus’ harm was caused by the interference with his privacy is properly characterised as a question of fact. The Court of Appeal has noted that to establish a finding of fact “was so clearly insupportable as to amount to an error of law” for the purpose of appeal, it must be demonstrated “that there was no evidence to support the determination, or that the true and only reasonable conclusion contradicts the determination”.24 There was clearly adequate evidence to make such a finding in this case.25
[19] Even if this can be described as a question of law, I accept Mr McCusker’s submission that it is not seriously arguable, as an express credibility finding is unnecessary where the basis for the determination is apparent from the reasons given.26 This was the case here, given the Court’s observation that the Tribunal was “not bound to accept [Mr Gorgus’] assertions on their face”,27 and that there was “ample evidence” for the Tribunal to find that Mr Gorgus was “frustrated by the system and the events referred to in the reports sought rather than the delay in the provision of information”.28
[20] Mr McCusker submits that it is unclear what a “subjective” versus an “objective” approach entails, but that a subjective approach would appear to require an assessment of the impact of any privacy interference on the claimant, whereas an objective approach involves an assessment of how a reasonable individual would react to the same.29 He contends that the Court took a subjective analysis that was specific
23 At [72]–[77].
24 Dotcom v Crown Law Office, above n 18, at [41].
25 High Court decision, above n 1, at [76].
26 Kilroy v R [2016] NZHC 2115 at [40], citing R v Scutts [2015] NZCA 599; and He v Chen [2016] NZCA 340.
27 High Court decision, above n 1, at [56].
28 At [45].
29 Mr McCusker referred to the cases of Chief Executive of the Ministry of Social Development v Holmes [2013] NZHC 672 at [161]; and Dotcom v Crown Law Office [2023] NZHC 1122, [2023] 3 NZLR 1 at [168].
to what the evidence indicated about the personal impact of the interference on Mr Gorgus. The Court also expressly noted that “it must assess the effect on the individual concerned”.30
[21] The applicant says that the High Court was suggesting an objective approach when it said that a “plaintiff must satisfy the Tribunal that there is some basis in the circumstances of the delay or some other contextual factor from which an inference of emotional distress can be appropriately drawn”.31 This followed an analysis of the evidence before the Tribunal and prefaced the Court’s finding that it was open to the Tribunal to find that, in context, the privacy breaches were not causative of emotional distress and did not give rise to such an inference.32 As Mr McCusker points out, the Court was adopting a subjective approach and was merely drawing on established principles in making that comment.
[22] It does not follow that, in finding that Mr Gorgus’ distress was attributable to other factors, the Tribunal and the Court took an “objective” approach. Rather, this was based on an assessment of the evidence. Requiring a plaintiff to provide an evidential basis to demonstrate that the harm they experienced was caused by the interference with privacy, does not necessarily mean the question is being assessed objectively, in the sense that it is determined without regard to the plaintiff’s individual circumstances. And, as noted in this Court’s decision, it cannot be the case that the Tribunal is required to accept all and any assertion raised by a plaintiff that the interference was the cause of their harm — this must involve some assessment of the evidence.33 Furthermore, there is no basis for the presumption suggested by Ms Taefi in the damages section of the Act, and in any case it would have been rebutted by the Court’s rejection of the appellant’s submission in that regard.34
[23] Finally, it is not clear that there is any actual inconsistency in the case law that raises an issue of general or public importance requiring clarification. The only two decisions that Ms Taefi says apply an “objective” approach are the present decision
30 High Court decision, above n 1, at [60].
31 At [61].
32 At [61], citing Hammond v Credit Union Baywide [2015] NZHRRT 6 at [170.1].
33 High Court decision, above n 1, at [56].
34 At [41]–[53] and [57]–[60].
and a subsequent decision of the Tribunal in Le’Long v Chief Executive of Oranga Tamariki, which applies the present decision.35 Both decisions expressly note that the personal characteristics of the plaintiff are to be considered.36
Ground 2: Relevance of personal characteristics to assessment of humiliation, loss of dignity and injury to feelings
[24] The second ground of appeal raised is that the Court took into account an irrelevant matter, being Mr Gorgus’ personal characteristics, in determining whether he had suffered humiliation, loss of dignity, and injury to feelings. Thus, while Ms Taefi suggests that a subjective approach should be taken to the question of causation between a breach of privacy and harm to the plaintiff, she appears to submit that the question of whether that harm has occurred is to be assessed objectively. In particular, she takes issue with the observation that Mr Gorgus was “a robust individual and familiar with legal proceedings”.37
[25] Ms Taefi acknowledges that this Court’s approach was consistent with previous decisions, which have reduced or denied awards of damages based on evidence of a plaintiff possessing personal characteristics which would make them less susceptible to such harm.38 She submits this trend is concerning, and “stands to penalise vulnerable members of society who experience frequent breaches of their rights”.
[26] Mr McCusker submits that the issue taken with the consideration of Mr Gorgus’ personal circumstances is inconsistent with Ms Taefi’s contention that the Court did not adopt a “subjective” assessment of damages. Ms Taefi is attempting to draw a distinction between the approach to be taken in establishing the existence of “humiliation, loss of dignity, and/or injury to feelings” and the determination of whether that was actually caused by the interference with privacy. However, as pointed out by the respondent, there is some inconsistency in Ms Taefi’s reliance on the cases of Hammond v Credit Union Baywide,39 Chief Executive of the Ministry of
35 Le’Long v Chief Executive of Oranga Tamariki [2024] NZHRRT 38.
36 High Court decision, above n 1, at [60]; and Le’Long, above n 35, at [62].
37 High Court decision, above n 1, at [59].
38 See Holmes, above n 29, at [161]; Attorney-General v Dotcom [2018] NZHC 2564, [2019] 2 NZLR 277 at [234]; and Hammond, above n 32, at [170.05].
39 Hammond, above n 32.
Social Development v Holmes,40 and Attorney-General v Dotcom,41 as she both criticises them for taking into account personal characteristics, but also cites them as examples of her preferred subjective approach to assessing damages. Those submissions are difficult to reconcile. The submissions advanced in support of the first ground of appeal (approach to causation) and the second ground of appeal (relevance of personal characteristics) are interlinked — the question of whether the interference with privacy caused humiliation, loss of dignity, or injury to feelings, necessarily involves assessing the actual impact on the plaintiff.
[27] Mr McCusker contends that the effect of Ms Taefi’s proposed approach is to treat all claimants alike in assessing the impact of privacy breaches, which could disadvantage more sensitive individuals. He says this itself amounts to an “objective” assessment.
[28] Any question of law as to whether the personal characteristics of a plaintiff are relevant to assessing harm under s 88(1)(c) does not raise a matter of general or public importance warranting the attention of the Court of Appeal. This Court considered that question and adopted an approach that was consistent with the case law. Ms Taefi does not raise any legal basis to suggest that the Court erred in this respect.
Ground 3: Loss of dignity should not require degree of marginalisation or dehumanisation
[29] Ms Taefi submits that the Court erred in relying on the decision of the Canadian Supreme Court in Law v Canada (Minister of Employment and Immigration),42 and finding that loss of dignity requires “some degree of marginalisation or dehumanisation”.43 She contends that this definition was expressed in the specific context of the right to equality before the law, and was described as “non-exhaustive”.44 Furthermore, she says that the reference in the High Court decision to the quote from Law that dignity is “harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs,
40 Holmes, above n 29.
41 Attorney-General v Dotcom, above n 38.
42 Law v Canada (Minister of Employment and Immigration) [1999] 2 SCR 497.
43 High Court decision, above n 1, at [86].
44 Law, above n 42, at [53].
capacities or merits”,45 was specific to the context of discrimination, and does not appropriately reflect the impact that an interference with privacy may have on one’s dignity.
[30]Ms Taefi contends that the New Zealand courts departed from Law v Canada
in Marshall v IDEA Services Ltd, and cites the following passage:46
First, it reflects the human experience, as humans experience it: when a prisoner is stripped, when a person with mental health difficulties is chained, when a person becomes indigent, when a child is ostracised – these are all experienced as harms to human dignity because people know that they are being treated as less than human, in a way that violates their right to equality but also, more fundamentally, violates their own sense of humanity. And, second, unlike other claims that may be barred by doctrinal and technical rules of interpretation, the relatively new area of dignity rights reaches injuries that other doctrinal claims may not reach. It thus brings the law closer to how people live.
[31] Ms Taefi contends that an alternative means of conceptualising dignity, specifically in relation to privacy, is to focus on whether the individual has been treated with respect, and suggests that this “might well lead to a different outcome” in Mr Gorgus’ case. She says that dignity cannot be reinstated, therefore the injury has occurred.
[32] Mr McCusker notes that the applicant cited Law v Canada in his submissions for the first appeal. Furthermore, the highest point that can be taken from the Tribunal’s decision in Marshall is that loss of dignity must be assessed on a case by case basis. While the Tribunal suggested that Law “possibly” provides less assistance than first thought,47 the definition of loss of dignity it articulated was “when … a person is treated as less than human, in a way which violates his or her right to equality in dignity and rights”.48 Furthermore, the Canadian Supreme Court’s observations were recently referred to with approval in D’Arcy-Smith v Chief Executive of Ministry of Social Development.49 In any event, the key finding of this Court that a loss of
45 High Court decision, above n 1, at [86], citing Law, above n 42, at [53].
46 Marshall v Idea Services [2020] NZHRRT 9, (2020) 12 HRNZ 567 at [83], citing James May and Erin Daly “Why dignity rights matter” [2019] EHRLR 129 at 132 (footnotes omitted).
47 Marshall, above n 46, at [87].
48 At [86].
49 D’Arcy-Smith v Chief Executive of Ministry of Social Development [2024] NZHC 1550 at [25] and [26].
dignity involves “an element of marginalisation or dehumanisation” is consistent with the approach in Marshall. This, of course, can be inferred in an appropriate case.
[33] Mr McCusker further submits that the argument that the Court should adopt an alternative conceptualisation of dignity that focuses on whether the individual has been treated with respect, is based on a question of law that was not argued during the first appeal. In any case, he submits that there is no evidence that Mr Gorgus was not treated with respect, and the Court’s definition of dignity as requiring some form of “marginalisation” is broad enough to encompass the test proposed by the applicant.
[34] This ground of appeal does not raise a matter of general or public importance. Dignity is a concept which is “notoriously difficult to define”, and is not one capable of neat clarification or definition. Furthermore, the approach taken was broadly consistent with New Zealand and Canadian jurisprudence and, in any event, it is not clear that the test put forward by Ms Taefi would result in a different outcome.
Ground 4: application of international human rights obligations
[35] Ms Taefi submits that, in declining to award damages, the Court failed to consider New Zealand’s privacy obligations under international law, including the OECD Guidelines and the ICCPR. She also disputes the notion that damages are not to be routinely awarded for breaches of privacy.50 Furthermore, Ms Taefi submits that the Tribunal in Marshall was wrong to find that a loss of dignity will not be made out if a breach is “not at the serious end of the scale”.51 She says that even “non-trivial” interferences should sound in damages, in order to provide an effective remedy. She contends that to find otherwise is contrary to the observations of the United Nations Human Rights Committee in relation to the ICCPR, that where an individual’s rights have been violated there is an obligation to provide an effective remedy, which “generally entails appropriate compensation”.52 Ms Taefi says the language of s 88(1) (now s 103(1)) that the Tribunal “may” award damages should be interpreted in line with international obligations, as requiring damages as an ordinary matter of course.
50 High Court decision, above n 1, at [87].
51 At [79], citing Marshall, above n 46, at [123].
52 Human Rights Committee General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant UN Doc CCPR/C/21/Rev.1/Add.13 (26 May 2004) at [16].
[36] As noted by Mr McCusker, no case law is provided to support the proposition that damages under the Act should be awarded for non-trivial breaches as a matter of course. Furthermore, the guidance of the United Nations in respect of compensation applies in the context of rights specifically affirmed under the ICCPR, and cannot override the statutory wording of the damages section in the Act.
[37] By way of analogy, Ms Taefi referred in her oral submissions to s 123 of the Employment Relations Act 2000 (ERA), which provides (among other remedies) for payment of compensation to an employee by their employer, including compensation for humiliation, loss of dignity, and injury to the feelings of the employee, and noted that the norm is the payment of such compensation.53 As Mr McCusker responded, the purpose, context and framework of the relevant statutes differs significantly. He noted that in an employment situation, hurt and humiliation may more readily be inferred from an unjustified dismissal. That is a matter for the relevant finder of fact. I also note that the wording of the nature of the remedy differs between the two pieces of legislation, as s 123 of the ERA refers to “payment” of compensation, while the damages section of the Privacy Act says the Tribunal may “award damages”. Ms Taefi did not advance that submission any further. I do not consider it is an apposite analogy in the circumstances.
[38] The interpretation championed by Ms Taefi that “may” in the damages section requires the Tribunal to award damages strains the plain meaning of the section. Nor does it account for the potential that vindication of a breach of privacy may in some circumstances be achieved by other means.54 This was reinforced in Dotcom v Crown Law Office, where the Court emphasised that damages is only one of the available remedies under the Privacy Act, and it does not therefore follow that, without damages, there is no effective remedy for a breach of privacy.55 Moreover, it would not be practicable for the New Zealand courts to enforce such a blanket statement that damages is generally the appropriate remedy where there is a breach of any of the ICCPR rights. In addition, as Mr McCusker points out, the balance of the
53 Employment Relations Act 2000, s 123(1)(c).
54 High Court decision, above n 1, at [81].
55 Dotcom v Crown Law Office [2023] NZHC 3105 at [30]–[31]; upheld on appeal in
Dotcom v Crown Law Office, above n 18.
UN passage cited specifies that compensation may take a range of forms, not only monetary.
[39] This ground of appeal does not raise a question of law that is capable of serious argument.
Prisoners’ and Victims’ Claims Act 2005
[40] Ms Taefi submits that if the appeal is permitted and the Court of Appeal accepts the appellant’s submission in relation to the fourth ground of appeal, it will have implications for the application of the Prisoners’ and Victims’ Claims Act 2005 (the PVCA), which permits compensation where it is necessary to find effective redress.
[41] What these “implications” would be are not expanded on in detail. The High Court decision found that, even if those grounds were made out, compensation would nonetheless be restricted by the operation of the PVCA. Given my above conclusion in respect of the fourth ground of appeal, I do not consider that this argument adds any weight to the application for leave.
Conclusion
[42] The matters raised in this application, in essence, largely relate to the findings of fact made by the Tribunal. The contention that the Tribunal was plainly wrong in its findings was the primary ground of appeal and focus of submissions before the High Court. This Court found the Tribunal findings were open to it.
[43] For the reasons set out above. the appeal does not raise any question of law that is of sufficient public importance to warrant a second appeal.
[44]The application for leave to appeal is dismissed.
Costs
[45] Mr McCusker indicated that as Mr Gorgus was in receipt of legal aid, no costs would be sought for the High Court appeal hearing.56 However if costs are sought on this application, a memorandum seeking costs together with submissions must be filed and served on or before five days from the delivery of this decision and any memorandum in response should be within a further five days.
Grice J
Solicitors:
Luke Cunningham & Clere, Wellington for Respondent
56 High Court decision, above n 1, at [98].
0
11
0