Greer v Commissioner of Police

[2024] NZHC 104

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2023-485-276

[2024] NZHC 104

BETWEEN

ALAN IVO GREER

Appellant

AND

COMMISSIONER OF POLICE

Respondent

Hearing:

1 February 2024

Appearances:

A I Greer in person

S B McCusker for Respondent

Judgment:

8 February 2024

JUDGMENT OF CHURCHMAN J

Introduction

[1]    Alan Ivo Greer appeals a decision made by the Human Rights Review Tribunal (The Tribunal) on 21 December 2022.  In  that  decision  the Tribunal  struck  out  Mr Greer’s claim against the Police, which had alleged a breach of principle 6 of the Privacy Act 1993 through failing to respond to an information request in a timely fashion. The appellant seeks the Tribunal’s decision to be “revoked/annulled.”

Background

Proceedings before the Tribunal

[2]    On 27 November 2015, Mr Greer filed a claim against the Police in the Tribunal, alleging a failure to  respond  to  his  information  privacy  request  dated 29 September 2014. The Police disputed these claims and filed a statement of reply on 24 December 2015.

GREER v COMMISSIONER OF POLICE [2024] NZHC 104 [8 February 2024]

[3]    Between 31 December 2015 and 18 June 2020, Mr Greer filed a series of applications and memoranda seeking that further particulars, information and documents be provided by the Police. Each were appropriately responded to by the Police.

[4]    In a Minute dated 10 September 2020, the Chairperson directed Mr Greer to file and serve his written statements of evidence and provide the Police with a list of documents by 4pm on Friday 18 December 2020. It noted that this was a particularly generous timeframe that was expected to be complied with.

[5]    Mr Greer failed to comply with these directions and did not file his statements by the due date.

[6]    A further Minute of the Chairperson  dated  31  October  2022,  noted  that Mr Greer had yet to file his statements of evidence and had not communicated with the Tribunal since 10 September 2020. He was directed by the Chairperson to file and serve his evidence by 2 December 2022, and told that if he did not do so the Tribunal would consider striking-out his claim.

[7]    Mr Greer did not file any submissions, and, on 5 December 2022, the Tribunal informed both parties it was considering striking-out Mr Greer’s claim on the papers. Submissions on that proposal were directed to be filed 19 December 2022. When no submissions were received, Mr Greer’s claim was struck out.

The appeal

[8]    Mr Greer drafted the notice of appeal himself. It was in the form of submissions and did not identify clearly the legal issues to be addressed.

[9]    By Minute of 7 September 2023, Walker J noted that the issue in the appeal is relatively  narrow  but  extended  the   time   to  file  further  points   on  appeal   to 15 September 2023. She also stated that Mr Greer was at risk of having his appeal struck out if the points on appeal were not filed within the stipulated time.

[10]   On 18 September 2023, Mr Greer filed his further points on appeal, which were again in the form of submissions.

[11]   In a Minute dated 2 October 2023, Ellis J directed the allocation of a half-day hearing for the appeal, and directed the parties to file their submissions, Mr Greer   20 working days before the hearing, and the Police 10 working days before the hearing.

[12]   No submissions were received. Mr Greer claimed his failure was due to a printer malfunction. In a minute of 30 January 20241 I noted that recent printer problems did not explain why the submissions had not been filed in early December as directed.  The appeal  hearing proceeded on the basis of oral submissions from  Mr Greer. Mr McCusker spoke to written submissions he had filed and  served on  Mr Greer.

The legal basis for Tribunal’s decision

[13]   The Tribunal relied on the power to strike out proceedings under s 115A of the HRA. The relevant part of this provision provides:

(1)The Tribunal may strike out, in whole or in part, a proceeding if satisfied that it—

(a)discloses no reasonable cause of action; or

(b)is likely to cause prejudice or delay; or

(c)is frivolous or vexatious; or

(d)is otherwise an abuse of process.

[14]   The Tribunal found s 115A(1)(d) to be the relevant ground of potential strike-out, and that the issues to be determined were:

(1)Whether Mr Greer’s failure to progress his claim was an abuse of process.

1      Greer v Police Minute of Churchman J, 30 January 2024.

(2)Whether the Tribunal should exercise its discretion to strike-out the claim.

[15]   The Tribunal found Mr Greer’s repeated failure to file his evidence over two years “must be regarded as deliberate,” as he had been given multiple opportunities to file his  evidence.2  These  included  the  Minutes  dated  10  September  2020  and  31 October 2022, where he was directed to file his evidence and did not do so by the prescribed deadline, and the Minute dated 5 December 2022 where he was warned the Tribunal was considering striking out his claim. The Tribunal found Mr Greer’s failure to progress his claim was an abuse of process, stating that:3

This inaction is a deliberate failure to engage with the Tribunal process and the long period of inactivity displayed by Mr Greer indicates no intention to bring these proceedings to a conclusion in a timely manner.

[16]   The Tribunal next considered whether to exercise its discretion to strike out the claim. It stated Mr Greer had provided no submissions in relation to the issue of strike-out, and noted the importance of ensuring finality of proceedings for both the Tribunal and the parties, as well as the limited resources of the Tribunal.4

[17]   The Tribunal discussed the fact that if the claim was to remain before the Tribunal, it would need to periodically remind Mr Greer to file evidence, which would take away resources from progressing and determining other claims, and leave the defendant and witnesses in a state of uncertainty while they wait for evidence to respond to.5 These factors, along with the fact that Mr Greer had taken no steps to progress his claim over two years, led the Tribunal to find that it was appropriate for it to exercise its discretion to strike-out Mr Greer’s claim.6

Appellant’s arguments

[18]   Mr Greer argued that the Tribunal did not have jurisdiction to strike out his claim due to the fact s 115A(1)(d) of the HRA was not in force until 2018, three years

2      Greer v Police (Strike-Out Application) [2022] NZHRRT 51 at [19].

3 At [20].

4      At [23] and [24].

5 At [25].

6 At [26].

after he filed his claim in 2015. He argued this meant that the provision was being unlawfully applied in retrospect.

[19]   Confusingly, having submitted that s 115A was inapplicable, he then relied on that section to submit that the Tribunal had breached s 115A(2)(a), which he argued required him to be present in person before his claim could be struck out. The decision at  the  Tribunal  was  made  on  the  papers  without  a  hearing.   In  a  minute  of    5 December 2022 the Tribunal advised Mr Greer it was contemplating a strike out on the basis that he had failed to comply with the timetable as mentioned and directed that any submissions on this potential course were to be filed by 19 December 2022. Mr Greer chose to file no submission or communicate with the Tribunal in any other way.

[20]   Further claims were also made by Mr Greer that the Tribunal’s decision ignored s 105 of the HRA. He argued that because it was accepted by police there was a breach of the Privacy Act 1993, the Tribunal and defendant were acting “ultra vires” to the “conditions as provided in s 105 of the Act.” He submitted that this should mean that the Tribunal’s decision should be rendered “null and void.”

Respondent’s submissions

Responses to appellant’s arguments

[21]   In response to the claims of retrospective application of s 115A, Mr McCusker submitted that although s 115A was inserted into the HRA in November 2018, and that legislation cannot have retrospective effect,7 it was not until September 2020 that the Tribunal made direction for Mr Greer to file his briefs of evidence. Since the failure to file these briefs of evidence is what gave rise to the decision to strike-out, s 115A was not applied retrospectively.

[22]   On the issue of whether the Tribunal was permitted to strike-out Mr Greer’s claims on the papers, Mr McCusker submitted that Mr Greer had misinterpreted       s 115A(2). Rather than requiring the party to be present before proceedings can be

7      Legislation Act 2019, s 11.

struck out, it provides options for how the Tribunal can respond to a proceeding where a party required to attend does not do so. It was submitted that this was analogous to the Court’s powers to dismiss an interlocutory application under r 7.40 of the High Courts Rules, and that Tribunal’s power to strike-out was not conditional on the circumstances in s 115A(2)(a) arising. Additionally, s 104(4A) of the HRA states that “despite anything in this Act to the contrary, the Tribunal or the Chairperson or a Deputy Chairperson may determine a proceeding on the papers” if they consider it appropriate.

[23]   Lastly, in relation to claims of disregard for s 105 of the HRA, Mr McCuskin referred to the decision in Gwizo8, where it was stated that s 105 is primarily relevant to strike-outs under s 115(1)(a) where there is no reasonable cause of action, and that s 105 has no material effect on the relevant principles under r 15.1 of the High Court Rules concerning abuse of process, which already set a high threshold. Counsel argues this means that the Tribunal was not required to consider the merits of the appellant’s claim when determining whether to strike out the proceedings.

[24]   Counsel pointed to the fact that the appellant had failed to file and serve briefs of evidence or progress his claim over several years, despite multiple chances and timetabling directions to do so. Counsel also submitted that the appellant’s conduct on appeal is reflective of the sort of conduct that led to the Tribunal’s decision, as  Mr Greer had to be directed to file a proper notice of appeal, was placed on notice of the possibility of an unless order, and defaulted in filing any written submissions.

[25]   Counsel have also argued that Mr Greer’s claims of being refused access to facilities while in Prison have no substance, as in a previous High Court decision9 it was found he was still able to advance his litigation against the Crown, despite some disadvantages, and there was no evidence of a conspiracy to deny him computer access. Counsel also raised the fact the onus was on the appellant to advise the Tribunal about any technical difficulties he is experiencing which made compliance with directions difficult but he had not done so. Lastly, Counsel noted that the

8      Gwizo v Attorney-General [2022] NZHC 2717 et [42].

9      Greer v Attorney-General [2018] NZHC 1240.

appellant is an experienced lay litigant who would be well aware of the need to comply with timetabling directions.

Analysis

Retrospective application of s 115A(1)(d)

[26]   No issue of retrospectively arises. Section 11 of the Legislation Act 2019 makes clear that legislation applies to circumstances as they arise. The appellant’s breach of directions did not occur when his claim was filed in 2015, rather it arose as submitted by respondent, at the earliest, on 10 September 2020 when the initial direction to file briefs of evidence was issued, or alternatively on 18 December 2020 when he actually breached the Chairperson’s direction by failing to file.

[27]   In any event, the power of the Tribunal to strike out proceedings has long predated s 115A, as confirmed by the decision in Mackrell v Universal College of Learning, where it was stated the Tribunal has “a wide discretionary power to strike out or dismiss a proceeding brought before it.”10

Claims of breach of s 115A(2)(a)

[28]   Mr Greer’s contention that s 115A(2)(a) requires him to be present before the Tribunal can strike-out his claim is also unsustainable. This provision empowers the Tribunal to strike-out a proceeding where a party was required to attend a hearing and did not do so. This is not the ground relied on by the Tribunal in this case. As Counsel for the respondent has correctly identified, there is no obligation on the Tribunal to have a hearing concerning whether to strike-out the appellant’s claim, as they retain the discretion to determine the proceeding on the papers if they consider it appropriate under s 104(4A) of the HRA, “despite anything in this Act to the contrary.”

Failing to consider s 105 of the HRA

[29]   Section 105 is potentially relevant to the decision to strike-out. This has been clearly identified in a number of cases, such as Mackrell v Universal College of

10     Mackrell v Universal College of Learning (HC) Palmerston North CIV-2005-485-802, 17 August 2005 at [46]—[48].

Learning.11 The Court has found previously that the section requires the Tribunal to adopt a relaxed approach to technicalities in recognition of the need to be accessible to lay people and self-represented litigants.12 However, the courts have held that this must be balanced against the need to free defendants from litigation which amounts to an abuse of process.13

[30]   Section 105 does not override s 115A of the Act or otherwise limit the ability of the Tribunal to strike complaints out where it determines they are an abuse of process.

Decision on the appeal

Approach on appeal

[31]   As noted above, appeals from the Human Rights Review Tribunal to the  High Court are governed by s 123 of the Act. Section 123(5) makes clear that when determining an appeal from Tribunal, the High Court has the powers conferred on the Tribunal by ss 105 and 106. This confirms that s 123 provides a general right of appeal, meaning the appeal is to be conducted as a rehearing and the principles set out in Austin Nichols apply.14 Consequently, the Court must make its own assessment of the issues, and the onus lies on the appellant to persuade the Court that it should reach a different conclusion from the Tribunal.15

Principles governing strike outs under s 115A of the HRA

[32]   As noted in Williams v Police,16 the Tribunal’s jurisdiction to strike-out a claim is equivalent to that held by the High Court under r 15.1 of the High Court Rules 2016. Thus, the principles governing the application of r 15.1 are relevant when considering the application of s 115A.

11 At [45].

12     Gwizo v MBIE [2022] NZHC 2717 at [44], citing Williams v Police [2021] NZHC 808 at [80].

13     Sax v Triathlon Tauranga Inc [2022] NZHRRT 35 at [8].

14     Wall v Fairfax New Zealand Limited [2018] NZHC 104 at [14].

15     Ministry of Health v Atkinson (2010) 9 HRNZ 47 (HC) at [8].

16     Williams, above n 12, at [75].

Was there an abuse of process?

[33]   An abuse of process is where judicial processes are misused in a way that tends to produce unfairness and to undermine confidence in the administration of justice.17 An abuse of process can occur when there is:

(1)Deliberate failure to comply with court orders.

(2)Continuing litigation without any intention of bringing it to a conclusion.

[34]   In regard to deliberate failures to comply with court orders, in Gwizo v MBIE, the Court held that repeated failures, especially where the plaintiff is a lay litigant, will not always be deliberate. However, it also stated:18

…a consistent failure in the face of repeated warnings will be regarded as deliberate, particularly where the plaintiff was conscious of the breach and chose to do nothing.

[35]   In Parking New Zealand Ltd v ABD Trustees Ltd,19 Associate Judge Abbott found that repeated failures to provide briefs of evidence whilst the plaintiff was aware it was breaching Court orders warranted the strike out of the claim. The Judge found the lack of any requests for extensions to the timetable or any updating affidavit that may have explained any difficulties supported a finding that the plaintiff was aware it was in breach, but chose to do nothing.20

[36]   Continuing litigation without any intention of bringing it to a conclusion is generally evidenced by a “long period of inactivity.”21 In Davidoff v ACC,22  the  High Court held that continued declining of teleconferences and failure to contact the Court  or  defendant  for  19  months  amounted   to   abuse   of   process.   In   Yarrow v Finnigan,23 it was held that proceedings which had stretched on six years

17     Reid v New Zealand Trotting Conference [1984] 1 NZLR 8 at 9.

18     Gwizo, above n 12, at [44].

19     Parking New Zealand Ltd v ABD Trustees Ltd HC Auckland CIV-2005-404-7397, 27 August 2007 at [25].

20 At [26].

21     Gwizo, above n 12, at [45].

22     Davidoff v ACC [2018] NZHC 2757 at [16] and [22].

23     Yarrow v Finnigan [2017] NZHC 1755.

with a series of delays and breaches of timetabling orders was an abuse of process as “the defendant is effectively held to ransom.”24

[37]   Mr Greer is an experienced litigant in person. Court records show that he has been involved in some 65 cases since 1997. He is clearly aware of the significance of timetable orders. He was also specifically put on notice by the Tribunal of the risk of having his claim struck out. It is therefore unsurprising that the Tribunal concluded that his failure to comply with the timetable directions from 28 January 2020 was deliberate.

[38]   The Tribunal’s conclusion that Mr Greer was engaging in continued litigation without intending to bring it to a timely conclusion is also one that was open to it. Although there was not the same volume of order breaches as occurred in Yarrow, or more express reluctance to progress the claim as in Davidoff, Mr Greer’s inaction extended over a period of 27 months where he did not contact the Court, nor comply with directions to file briefs of evidence. Combined with the fact that Mr Greer is an experienced lay litigant and the fact the proceedings had stretched on for seven years, it was open to the Tribunal to conclude that there was no real intention to bring the proceeding to a timely conclusion.

Should the Tribunal have exercised its discretion to strike out the claim?

[39]   If an abuse of process is found, the Tribunal has a discretion whether or not to strike out the proceeding, as evidenced by the wording “may” in s 115A(1). There is a relatively high threshold before proceedings are struck out, which requires the balancing of freeing defendants from the burden of litigation against the right to access to justice25 and any prejudice to be suffered by the applicant should their claim be struck out.26 Section 105 of the HRA and its requirements to consider the principles of natural justice, fairness, reasonableness, equity and good conscience must be balanced against the need to avoid an abuse of process.27

24     At [50]—[51].

25     Gwizo v Attorney-General [2021] NZHRRT 20 at [21].

26     Cable v Liverpool Victoria Insurance Co Ltd [2020] EWCA Civ 1015 at [63].

27     Gwizo, above 12, at [49].

Conclusion

The discretion of the Tribunal to exercise its power to strike out pursuant to s 115A of the Act was properly invoked. The deliberate failure to progress the hearing of the claim amounted to an abuse of process.

Result

The appeal is dismissed.

Costs

If costs are in issue the respondent is to file and serve a memorandum of no greater than three pages in length within 10 working days of this decision. Mr Greer will have 10 working days to file and serve a memorandum of no greater than three pages in length. Costs will then be determined on the papers.

Churchman J

Solicitors:

Luke Cunningham Clere, Wellington, for Respondent