Greenslade v Commissioner of Police

[2022] NZHC 1153

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-34

[2022] NZHC 1153

IN THE MATTER

of appeal under s 123(2) of the Human Rights Act 1993

BETWEEN

GUY GREENSLADE

Appellant

AND

COMMISSIONER OF POLICE

Respondent

Hearing:	23 May 2022
Appearances:	M Timmins and G J Robins for the Appellant D L Harris and A P Lawson for the Respondent
Judgment:	24 May 2022

JUDGMENT OF COOKE J

(Leave to file new evidence)

[1]                  The appellant appeals against the decision of the Human Rights Tribunal dismissing his claim that the Commissioner’s decision not to accept him into Police College involved prohibited discrimination under the Human Rights Act 1993.1

[2]                  To be accepted into Police College candidates must satisfy a number of tests. One of them is a typing test. The appellant failed the typing test three times and he was accordingly declined entry to Police College. The appellant suffers from dyslexia, and it is accepted that dyslexia is a disability.

[3]                  The key finding of the Tribunal is that s 22 of the Human Rights Act applies on the basis that the appellant was not “qualified” for work by reason of his typing

1      Greenslade v Commissioner of Police [2021] NZHRRT 53.

GREENSLADE v COMMISSIONER OF POLICE [2022] NZHC 1153 [24 May 2022]

deficiency. The Tribunal held that his rejection was not the consequence of a prohibited ground of discrimination arising from a disability, but arose from a failure to meet a necessary qualification for employment.

[4]                  By application dated 20 April 2022 the appellant now seeks leave to file further evidence on appeal. In particular he wishes to file evidence relating to the training that may or may not have been available to him at Police College. In an affidavit from a solicitor at the office of Human Rights Proceedings sworn 20 April 2022 documents that have been exchanged about the nature of the training, and the extent to which it could encompass training in relation to typing skills, are exhibited. The application relates to these documents.

[5]                  There is no difference between the parties in relation to the standards to be applied on the admission of fresh evidence on appeal. Rule 20.16 of the High Court Rules 2016 provides:

20.16   Further evidence

(1)Without leave, a party to an appeal may adduce further evidence on a question of fact if the evidence is necessary to determine an interlocutory application that relates to the appeal.

(2)In all other cases, a party to an appeal may adduce further evidence only with the leave of the court.

(3)The court may grant leave only if there are special reasons for hearing the evidence. An example of a special reason is that the evidence relates to matters that have arisen after the date of the decision appealed against and that are or may be relevant to the determination of the appeal.

(4)Further evidence under this rule must be given by affidavit, unless the court otherwise directs.

[6]                  The application here falls to be determined under r 20.16(2) and (3). The approach was summarised by Wylie J in B v A in the following terms:2

The relevant principles governing the receipt of further evidence are straightforward:³

2      B v A [2020] NZHC 580, (2020) 26 PRNZ 58 at [25].

3      Hodgson v Hodgson [2015] NZCA 404 at [45], [2015] NZFLR 979 at [39]-[44]; And see Nation v Nation [2005] 3 NZLR 46 (CA); Telecom Corp of NZ Ltd v Commerce Commission [1991] 2 NZLR 557 (CA); Comalco NZ Ltd v TVNZ Ltd (1996) 10 PRNZ 573; Complaints Committee No 1 of the Auckland District Law Society v P (2007) 18 PRNZ 760.

(a)the Court can receive further evidence if it thinks that the interests of justice require it to do so;

(b)it is wrong to allow an appellant to bolster his or her case with additional evidence that was available at the lower Court hearing, but not adduced because of the particular view of the case being taken at the time;

(c)admitting further evidence on appeal is exceptional rather than routine. A change of heart about how a case should have been run will not suffice. The prospect of further evidence triggering a substantial re-litigation before the appellate Court of the substantive case will count against admitting the further evidence;

(d)generally, the further evidence must be fresh, credible and cogent;

(e)evidence will not be regarded as fresh if it could, with reasonable diligence, have been produced at the trial;

(f)the absence of freshness is not an absolute disqualification. When the further evidence is not fresh, it will not generally be admitted unless the circumstances are exceptional and the grounds compelling. In addition, the further evidence needs to pass the tests of credibility and cogency;

(g)the interests of justice require the parties to put their best case forward at trial, in order to avoid wasting the Court’s limited time and resources. A high value is placed on finality when the parties have been afforded the opportunity and failed to take it; and

(h)the standard to be met is “rightly high”.

[7]                  In light of those principles I am not persuaded that the application should be granted.

[8]                  First, I do not accept that the proposed evidence is fresh. Documentation about the training available at Police College could have been obtained by the appellant and referred to the Tribunal if he had raised it as part of his case. The appellant did not contend before the Tribunal that he had a typing deficiency as a result of his dyslexia, and that this deficiency could have been remedied by training made available after acceptance into the College. Yet this is the argument that the appellant now wishes to include as part of the appeal by reference to the additional evidence. The appellant could have pursued this allegation before the Tribunal, and then sought by way of discovery any documentation about the training, or the limits of it, at Police College. But the appellant did not do so. The only proposition advanced by Mr Timmins and Mr Robins explaining why he had not done so was their argument that acceptance at

the College would itself be acceptance into employment, and that the only relevant qualification would be those relevant to acceptance on the course, rather than the qualifications required to be a Police Constable. As I understand this point it is said that it was not appreciated that it was the qualifications required of Police Constables that were in issue. I see that as a very subtle distinction that does not respond to the argument advanced by Ms Harris that this evidence is not fresh. Had an argument about training formed part of the appellant’s case the evidence could have been obtained. This evidence is not new, and would have been freely available to be introduced before the Tribunal had this issue been pursued.

[9]                  The second point is that the evidence is not cogent. The documents referred to are limited in number and contain only oblique references to the training that is, or is not, available at Police College. None of them mention typing training. There is reference to computer training, and to training that may be needed by particular candidates, but little more than that. I accept Ms Harris’ argument that if this issue is properly to be explored more direct evidence would need to be obtained from the Commissioner. It is also significant that other important evidence is not presently available. There is no evidence that the appellant was unable to meet the requirements to pass the typing test because of his dyslexia, or that he could have overcome that difficulty with training. Indeed his evidence before the Tribunal was that he could have met the typing test if he had properly understood its significance, and had properly prepared for it, but that he had been deprived of a fair opportunity to do so. So it seems to me that the evidence before the Tribunal, and accordingly the Court, that a lack of subsequent training (and his rejection without the consideration of that training) involved discriminatory decision-making does not have a satisfactory evidential foundation. The documents the appellant now wishes to adduce are not cogent given the lack of more fundamental evidence about this issue. As I suggested to Mr Timmins and Mr Robins in argument, the documents the appellant seeks to introduce could only be regarded as scratching the surface.

[10]              As Ms Harris accepted in argument the appellant will be able to advance arguments on appeal that the Tribunal has misinterpreted or misapplied s 22 of the Human Rights Act in relation to a person being “qualified for work”. This judgment should not be interpreted as confining the available argument. But I am not satisfied

that the evidence  the  appellant  now wishes  to  adduce  meets  the requirements  of r 20.16. It is neither fresh nor cogent, and there are not compelling reasons to allow it to be admitted.

[11]              The application is accordingly dismissed. The respondent will likely be entitled to costs of this application on a 2B basis. It may be that these costs can be addressed in the context of a final costs award for the appeal, but if there is any dispute as to costs the parties may file memoranda.

Cooke J

Solicitors:
Crown Law, Wellington for the Respondent